Justice Scalia's Dissent

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... 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 that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. 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. ...

In addition to this general tradition of prayer at public ceremonies, there exists a more specific tradition of invocations and benedictions at public-school graduation exercises. By one account, the first public-high-school graduation ceremony took place in Connecticut in July 1868--the very month, as it happens, that the 14th Amendment (the vehicle by which the Establishment Clause has been applied against the states) was ratified--when "15 seniors from the Norwich Free Academy marched in their best Sunday suits and dresses into a church hall and waited through majestic music and long prayers.'' As the Court obliquely acknowledges in describing the "customary features'' of high-school graduations, ... the invocation and benediction have long been recognized to be "as traditional as any other parts of the [school] graduation program and are widely established.''

... I find it odd that the Court concludes that high-school graduates may not be subjected to this supposed psychological coercion, yet refrains from addressing whether "mature adults'' may. I had thought that the reason graduation from high school is regarded as so significant an event is that it is generally associated with transition from adolescence to young adulthood. Many graduating seniors, of course, are old enough to vote. Why, then, does the Court treat them as though they were 1st graders? Will we soon have a jurisprudence that distinguishes between mature and immature adults? ...

The deeper flaw in the Court's opinion does not lie in its wrong answer to the question whether there was state-induced "peer pressure'' coercion; it lies, rather, in the Court's making violation of the Establishment Clause hinge on such a precious question. The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty. Typically, attendance at the state church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. ...

... [T]here is simply no support for the proposition that the officially sponsored nondenominational invocation and benediction read by Rabbi Gutterman--with no one legally coerced to recite them--violated the Constitution of the United States. To the contrary, they are so characteristically American they couldhave come from the pen of George Washington or Abraham Lincoln himself. ...

Our religion-clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions. Foremost among these has been the so-called Lemon test, which has received well-earned criticism from many members of this Court. 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.

Another happy aspect of the case is that it is only a jurisprudential disaster and not a practical one. Given the odd basis for the Court's decision, invocations and benedictions will be able to be given at public-school graduations next June, as they have for the past century and a half, so long as school authorities make clear that anyone who abstains from screaming in protest does not necessarily participate in the prayers. All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation program, to the effect that, while all are asked to rise for the invocation and benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. That obvious fact recited, the graduates and their parents may proceed to thank God, as Americans have always done, for the blessings He has generously bestowed on them and on their country. ...

Vol. 11, Issue 40, Page 43

Published in Print: August 5, 1992, as Justice Scalia's Dissent
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