Justices Weigh Allowing Prayers At Graduation

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WASHINGTON--The inclusion of prayer at a public-school graduation exercise is consistent with the nation's long tradition of invoking God's name during ceremonial events and should be upheld as constitutional, lawyers representing the Bush Administration and a Rhode Island school district told the U.S. Supreme Court last week.

In upholding that practice, the lawyers argued, the High Court should abandon a 20-year-old precedent and replace it with a new test for evaluating whether a state action violates the U.S. Constitution's ban on a government establishment of religion.

"We believe ourselves, as a people, to be one nation under God," Solicitor General Kenneth W. Starr said on behalf of the Administration during oral arguments Nov. 6 in Lee v. Weisman (Case No. 90-1014).

But the Justices, several of whom have expressed a desire to discard or alter the Court's existing precedent for evaluating cases involving the Establishment Clause of the First Amendment, appeared hesitant last week about the idea of allowing prayer at graduation ceremonies.

A lawyer representing a family in the Providence, R.I., district that objected an invocation and benediction at a middle-school promotion ceremony urged the Court to retain its precedent governing church-state issues and to affirm rulings by two lower federal courts that such prayers violate the Constitution.

"The effect of including a prayer" during public-school graduation ceremonies, argued Sandra A. Blanding, a Warwick, R.I., lawyer, "is that the public school is saying, at the very least, that prayer is an accepted practice" and that non-adherents are "outsiders and the public school system does not belong to them."

The case is one of the most closely watched of the Court's 1991-92 term, and the hour-long oral argument provoked spirited exchanges between several Justices and the three lawyers.

'A Ceremonial Event'

Representing the Providence School Committee in the case was Charles J. Cooper, who served as an assistant attorney general during the Reagan Administration.

"We submit that if the courts below were correct," Mr. Cooper said, "then Rabbi [Leslie] Gutterman's relatively simple prayer pales as a constitutional threat compared with this Court's opening."

Mr. Cooper was referring to the invocation and benediction given by Rabbi Gutterman at the June 1989 graduation ceremony at Nathan Bishop Middle School in Providence-the prayers directly at issue in the case--and to the traditional opening for 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 a graduation ceremony "are a far cry from the practices the Founding Fathers sought to stop" with the Establishment Clause.

"I believe the graduation ceremony is more like a ceremonial event," he said, likening the prayers on such an occasion to those used to open a session of the Congress or a Presidential inauguration.

Ms. Blanding countered that the public-school setting demands a more rigorous constitutional analysis than the other examples of civic acknowledgment of a deity. She said that the Supreme Court Marshal's declaration invoking God is much closer to the state legislative prayers that the Court upheld in a 1983 case than it is to graduation prayer.

Case Background

Daniel Weisman, a Providence parent, found the inclusion of prayers offensive when he attended his eldest daughter's promotion ceremony from Nathan Bishop Middle School in 1986. The Christian minister present asked parents to thank Jesus for the accomplishments of their children.

The Weismans, who are Jewish, were deeply upset, according to briefs filed in the case. Three years later, when a younger daughter approached her graduation from Nathan Bishop, Mr. Weisman wrote letters to school officials seeking to have any such prayers eliminated from the ceremony. Instead, school officials attempted to placate the Weismans by asking a rabbi to deliver a nonsectarian blessing.

Mr. Weisman sued the school district in an effort to block the prayers. A federal district judge allowed the 1989 ceremony to go on as planned, but he issued an injunction in January 1990 barring prayer at future graduation exercises. The U.S. Court of Appeals for the First Circuit last year upheld the ruling.

1971 Test at Issue

Graduation prayer has been a flashpoint for school districts throughout the country in recent years, and school officials are looking to the Lee case to settle the troublesome issue. (See Education Week, June 12, 1991.)

Educators and legal experts are also watching to see whether the Court will heed the advice of the Bush Administration and the Providence School Committee to scrap the 1971 precedent set in Lemon v. Kurtzman, in which the Court outlined a three-part test for analyzing whether a state action is an unconstitutional establishment of religion.

Under the test, a governmental policy or practice passes constitutional muster if it has a secular purpose, has a primary effect that neither advances nor inhibits religion, and does not foster an excessive entanglement with religion.

The test has been cited as a controlling precedent in 29 High Court decisions and hundreds of other rulings by lower courts, many of them involving education.

However, it has become clear in recent years that several Justices are unhappy with the test.

'Coercion' Test?

Two years ago, in a dissent from a 5-to-4 ruling that barred the display of a Nativity scene at a courthouse, Justice Anthony M. Kennedy wrote that "a substantial revision of our Establishment Clause doctrine may be in order."

Justice Kennedy, supported by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Byron R. White, advocated a new test that would uphold a government connection to religion unless the state coerced people to participate in a religious exercise.

Both the Bush Administration and the Providence school district have advanced such a "coercion" test as a replacement for the one enunciated in Lemon.

Two Justices who were in the majority in Allegheny County v. A.C.L.U., the 1989 creche case, have since retired William J. Brennan Jr. and Thurgood Marshall.

It remains to be seen whether Justice Kennedy's proposed test can now command a majority of the Court with the addition of David H. Souter and Clarence Thomas.

Justice Souter suggested last week that he was troubled by the arguments advanced by the Providence schools and the U.S. government.

Accepting the Justice Department's argument would create a "hard choice," Justice Souter told Mr. Starr, between acknowledging the tradition of public recognition of God and upholding the Court's efforts to keep prayer out of the public schools that began with the 1962 case Engel v. Vitale.

"If Engel is good law, we've got to choose," Justice Souter said.

'A Key Event in Life'

Even Justice Kennedy suggested that graduation prayer might not pass constitutional muster under the new test he favors.

In response to an argument by Mr. Cooper that those offended by prayer at graduation were free not to attend, Justice Kennedy said: "In our culture, graduation is a key event in a young person's life. It is a very, very substantial burden to say that he or she can elect not to go" if offended by the prayer.

Justice Sandra Day O'Connor asked Mr. Cooper whether the government's proposed "coercion" test might allow a state legislature to adopt "a particular religion as the state church," just as it might declare that "the bolo tie is the state tie."

Both she and Justice Scalia appeared surprised by Mr. Cooper's response that a state could select an official faith so long as it did not coerce its citizens into observing it. Mr. Cooper said such an action would be similar to the 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 comports with our tradition," Justice Scalia said.

Justice Scalia later suggested that he would not distinguish the school-graduation setting from public invocations of God in court or in the Congress.

"It's people in a country which overwhelmingly believes in God wanting to invoke God's blessing," he said. "Why is it suddenly different at a public-school graduation?"

Vol. 11, Issue 11, Pages 1, 21

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