In a prelude to a similar case to be heard by the U.S. Supreme Court next term, the California Supreme Court last week ruled that prayers at public high-school graduation ceremonies violate the Constitution’s ban on government establishment of religion.
But in an unusual pair of concurring opinions, two justices who joined the majority in the 5-to-2 ruling said they did so “reluctantly,” and they invited the U.S. Supreme Court to find a way to rule that graduation prayers do not violate the First Amendment of the U.S. Constitution.
“This case lies at the crossroads between public instruction and public ceremony,” Chief Justice Malcolm Lucas wrote in his concurring opinion of the May 6 decision. “As such, it affords an opportunity to re-examine basic principles and values underlying the religion clauses of the First Amendment.”
The state supreme court’s ruling, in a case brought by two taxpayers against the Morongo Unified School District in Southern California, was divided into six separate opinions, reflecting the divergent social and judicial sentiment on the issue of graduation prayer, observers said.
Justice Joyce Kennard, in the main opinion, said the district’s practice of allowing religious invocations and benedictions at high-school graduation ceremonies violates the U.S. Supreme Court’s three-pronged test for determining the constitutionality of religion-related civic practices.
Under the so-called “Lemon test,” articulated by the Court in deciding the 1971 case Lemon v. Kurtzman, a government practice that is challenged as unconstitutionally establishing religion must be of secular purpose, must neither advance nor inhibit religion, and must not foster an excessive entanglement between government and religion.
“When a school district opens or closes the graduation ceremony with a prayer, it sends a powerful message that it approves of the prayer’s religious content,” wrote Justice Kennard in finding that the practice violated the second and third prongs of the Lemon test.
The Morongo district included invocations and benedictions, often by ministers, at the graduation ceremonies of its four high schools, with the practice going back as far as 1937 at its oldest school. In 1986, two taxpayers challenged the practice with the support of the American Civil Liberties Union of Southern California and the American Jewish Congress.
A state trial court granted the plaintiffs’ motion for summary judgment, and the prayers were barred for two years before an appeals court ruled in the school district’s favor in 1989. The case was then appealed to the state’s highest court.
The immediate impact of the supreme court’s decision is that the numerous school districts in California that include prayers at graduation ceremonies will probably cancel plans to allow them this year, said Christian M. Keiner, a Sacramento lawyer who argued the case for the Morongo district before the supreme court.
“We were disappointed in the outcome,” Mr. Keiner said. “But the six opinions of the California Supreme Court demonstrate the problems in applying the Lemon test and point to the need for the U.S. Supreme Court to seriously address this issue.”
The Bush Administration has urged the U.S. Supreme Court to re-examine the Lemon test when it considers an appeal by the Providence, R.I., school board of lower-court rulings that prayers at junior- and senior-high school graduation ceremonies are unconstitutional. (See Education Week, March 27, 1991.)
That case, Lee v. Weisman, is considered an opportunity for the High Court to settle the school graduation prayer issue once and for all, and eliminate the threat of lawsuits in the many school districts nationwide where the practice prevails.
Of further interest to many lawyers and school officials is whether the Justices will use the case to abandon the Lemon test. Some justices in recent years have hinted that they would prefer a less-stringent standard for examining establishment-of-religion cases, and any change in the standard would have a major effect on many church-state issues involving the public schools.
“The stage is clearly set for the Supreme Court to make a precedent-setting ruling,” said Joseph Conn, a spokesman for Americans United for Separation of Church and State, a national advocacy group. “There is a lot of pressure on them to do that.”
Mr. Keiner said the Morongo district may appeal the California Supreme Court ruling to the U.S. Supreme Court. The High Court could then join the California case with the Rhode Island case if it so chose.
Both Justices Lucas and Armand Arabian, in separate concurrences, said they “reluctantly” found that the practice of graduation prayers violates the Lemon test, but they called for the U.S. Supreme Court to analyze the practice on other terms.
“Our national experience teaches that the mutual independence of church and state is the most conducive system to religious freedom and social and political tranquility,” Jus8tice Arabian writes. “Public prayer does not threaten that harmony or the liberty of conscience which underlies it. On the contrary, it is through such occasions that we reinforce and celebrate the rich diversity that had made us great and noble people.”
Chief Justice Lucas argues that graduation invocations and benedictions may be analogous to prayers offered in state legislatures, which have been upheld by the U.S. Supreme Court “as a benign recognition of religion as part of American culture.”
However, he notes that the Supreme Court has been “particularly zealous in policing the boundary” between religious teaching and instruction in the public schools.
“Although a strict application of the Lemon test may invalidate the practice at issue here, a more sensitive and balanced application of” the principles of government’s disengagement from religion and benign recognition of religion as part of culture “may sustain it,” he writes.
Two justices dissented. Justice Edward Panelli said that even under the Lemon test, graduation prayers were a valid “accommodation of religion,” similar to the printing of “In God We Trust” on coins. Justice Marvin Baxter said such prayers may be constitutional under some circumstances.
Another issue in the California case is the applicability of the state constitution, which contains language barring government establishment of religion and state aid to religious schools that goes beyond the U.S. Constitution.
Justice Kennard, in the main opinion, said the practice of prayers at graduation ceremonies also violates several such provisions of the state constitution.
In a concurring opinion, Justice Stanley Mosk said the state constitution should be used for the primary analysis of the practice’s constitutionality. Even if the U.S. Supreme Court were to find that graduation prayer is constitutional, the practice would still violate California’s constitution, he said.
