2

However, more recently, the Court upheld as constitutional what it terms “legislative prayer” in Town of Greece v. Galloway (2014). In Galloway, the Court found the prayer noncoercive, and noted that legislative prayer is a deeply rooted tradition in our country. Establishment clause case law consists of numerous decisions concerning the permissibility of government financial aid to religious schools. In Agostini v. Felton (1997), the Court determined that state-provided remedial education in parochial schools did not violate the purpose, effect, or entanglement prongs of the Lemon test. It also upheld, in Zelman v. Simmons-Harris (2002), a state voucher plan that enabled parents to choose between public and private schools (including parochial schools) for their children’s education.

Central to this process of reducing their tension have been concepts of neutrality and accommodation. From these premises, the Court has developed an understanding of the establishment clause that is not an absolute barrier to religion in public life and actually provides room for religion in this context. The accommodation principle has been exemplified in the allowance of prayer in certain public proceedings. The Court in Marsh v. Chambers (1983), for instance, upheld religious invocations at the beginning of state legislative sessions. Even though the state paid for and provided for the chaplain who performed the invocation, the Court determined that such prayer was “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” Similar analysis has governed the reference to God on currency and coins and in various ceremonial contexts. These results contrast with outcomes in the context of public schools, where the Court is more concerned with the potential for indoctrination or divisiveness. Prayer in public schools, as the Court’s decisions in Santa Fe Independent School District v. Doe (2000) and Lee v. Weisman (1992) evidence, is less likely to be regarded in terms of “tolerable acknowledgment” or mere “ceremony.”

Accommodation has been a primary factor in resolving controversies arising from public holiday displays that include a religious symbol or message. The seminal case on this point is Lynch v. Donnelly (1984). At issue in this case was an inexpensive nativity scene that the city paid for and that was displayed in a park owned by a nonprofit organization. Elements of the display included secular symbols and images associated with Christmas, including Santa Claus, reindeer, a Christmas tree, and a banner with the message “Season’s Greetings.” Also present was a crèche displaying “the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals.” Cost and maintenance of the nativity scene was relatively insubstantial.

Accommodation, from the Court’s perspective, reflected a historical acknowledgment by each branch “of government of the role of religion in American life from at least 1789.” In this regard, the Court cited numerous examples of national traditions that incorporate a religious heritage. Included among these are the observance of Thanksgiving, which, like Christmas, originated as a religious holiday but evolved also as a national holiday. The Court noted the imprint of “In God We Trust” on coinage and the reference to “one nation under God” in the Pledge of Allegiance. It also referenced federal support for art exhibits that include religious paintings and an annual “National Day of Prayer” proclaimed by the President.

Given these traditional references to religion, the Court maintained that the establishment clause could not be viewed as a barrier to any government action that may benefit or recognize religion. The appropriate inquiry thus was whether official conduct or policy “in reality . . . establishes a religion or religious faith, or tends to do so.” Relevant considerations, as in other establishment clause cases, were whether government action had a secular purpose, had a principal or primary effect of advancing religion, or excessively entangled church and state. The Court stressed, however, that establishment clause analysis should not be confined exclusively to these considerations in all circumstances.

The Court viewed the display as having a secular purpose, insofar as it was designed to celebrate the holiday and showcase its origins. Although the crèche had a religious meaning, its incorporation into the overall exhibit diluted its significance. From the Court’s perspective, therefore, the primary effect of the display did not aid religion. Nor did the Court discern excessive entanglement of government and religion. It found no evidence of government consulting church officials with respect to the content, design, or presentation of the crèche.

Justice Sandra Day O’Connor agreed with the outcome, but wrote a concurring opinion offering “a clarification of our Establishment Clause doctrine.” Justice O’Connor contended that an establishment clause violation should depend upon whether church and state were excessively entangled with each other or on when government acts to approve or endorse religion. The key issue from her perspective was whether display of the crèche constituted an official endorsement of Christianity. As she described the display, it represented an acknowledgment of religion as one of any number of historical and ubiquitous practices that government may reference without being seen as approving or endorsing it.

Justice William Brennan, in a dissenting opinion joined by three of his colleagues, characterized the crèche “as a recreation of an event that lies at the heart of the Christian faith.” Given this perception, he objected to “the Court’s less-than-vigorous application” of establishment clause standards. Even if incorporated into a secular context, Justice Brennan believed that the nativity scene’s “singular religiosity” was not diluted. From his perspective, the display was inconsistent with “our remarkable and precious religious diversity as a Nation, which the Establishment Clause seeks to protect.” Justice Brennan added that “it blinks reality to claim, as the Court does, that by including such a distinctively religious object as the crèche in its Christmas display,” the city had purged its meaning.

Justice Brennan doubted whether non-Christians, when viewing “the chief symbol” of the Christian belief in a divine savior, would perceive anything other than a religious meaning. Contrary to being “a mere representation” of a certain historic religious event, the crèche struck Justice Brennan as a central aspect of Christian dogma—that “God sent His Son into the world to be a Messiah.” Equating the crèche with traditional secular symbols such as Santa Claus, from Justice Brennan’s viewpoint, insulted those who view “the story of Christ” in religious terms. He thus urged recognition of the city’s action “for what it is: a coercive, though perhaps small, step toward establishing the sectarian preferences of the majority at the expense of the minority, accomplished by placing public facilities and funds in support of the religious symbolism and theological tidings that the crèche conveys.”

Justice Anthony Kennedy, joined by three of his colleagues, dissented. The dissenters objected to the Court’s detail-based oversight of the display. They also questioned whether the traditional focus on purpose, effect, and excessive entanglement should continue as the “primary guide” for establishment clause review. In the dissenters’ view, “[s]ubstantial revision of Establishment Clause doctrine may be in order.”

Dissatisfaction with establishment clause standards, evidenced in the dissenting opinion, has been a continuing but unresolved phenomenon. Among the most vocal critics has been Justice Antonin Scalia. Dissenting from the Court’s decision in Lee v. Weisman (1992), which prohibited student-led prayers at high school graduation ceremonies, Justice Scalia observed that establishment clause “jurisprudence has become bedeviled . . . by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions.” In Lamb’s Chapel v. Center Moriches Union Free School District (1993), he and Justice Clarence Thomas announced that they were abandoning any further use of the traditional establishment clause standard of review. Although a majority of the Court at one time or another has expressed dissatisfaction with this standard, consensus with respect to a substitute formula has been difficult to achieve. For Justice Scalia and other critics, the Court’s continuing deployment of an unsatisfactory standard of review “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being killed and buried, [continues to] stalk our Establishment Clause jurisprudence.”

Chief Justice BURGER delivered the opinion of the Court.

There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789. Seldom in our opinions was this more affirmatively expressed than in Justice Douglas’ opinion for the Court validating a program allowing release of public school students from classes to attend off-campus religious exercises. Rejecting a claim that the program violated the Establishment Clause, the Court asserted pointedly:

“We are a religious people whose institutions presuppose a Supreme Being.”

Executive Orders and other official announcements of Presidents and of the Congress have proclaimed both Christmas and Thanksgiving National Holidays in religious terms. And, by Acts of Congress, it has long been the practice that federal employees are released from duties on these National Holidays, while being paid from the same public revenues that provide the compensation of the Chaplains of the Senate and the House and the military services. Thus, it is clear that Government has long recognized—indeed it has subsidized—holidays with religious significance.

Other examples of reference to our religious heritage are found in the statutorily prescribed national motto “In God We Trust,” 36 U.S.C. § 186, which Congress and the President mandated for our currency, see 31 U.S.C. § 324, and in the language “One nation under God,” as part of the Pledge of Allegiance to the American flag. That pledge is recited by thousands of public school children—and adults—every year.

. . . The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent—not seasonal—symbol of religion: Moses with Ten Commandments. Congress has long provided chapels in the Capitol for religious worship and meditation.

There are countless other illustrations of the Government’s acknowledgment of our religious heritage and governmental sponsorship of graphic manifestations of that heritage. Congress has directed the President to proclaim a National Day of Prayer each year “on which [day] the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.” Our Presidents have repeatedly issued such Proclamations. . . . One cannot look at even this brief resume without finding that our history is pervaded by expressions of religious beliefs such as are found in Zorach, supra. Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none. Through this accommodation, as Justice Douglas observed, governmental action has “follow[ed] the best of our traditions” and “respect [ed] the religious nature of our people.”

Rather than mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith—as an absolutist approach would dictate—the Court has scrutinized challenged legislation or official conduct to determine whether, in reality, it establishes a religion or religious faith, or tends to do so. Joseph Story wrote a century and a half ago:

“The real object of the [First] Amendment was . . . to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.”

In each case, the inquiry calls for line drawing; no fixed, per se rule can be framed. . . .In the line-drawing process we have often found it useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. But, we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area. In two cases, the Court did not even apply the Lemon “test.” . . .

In this case, the focus of our inquiry must be on the crèche in the context of the Christmas season. . . . Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause.

The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations. Even where the benefits to religion were substantial, we saw a secular purpose and no conflict with the Establishment Clause.

. . . When viewed in the proper context of the Christmas Holiday season, it is apparent that, on this record, there is insufficient evidence to establish that the inclusion of the crèche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message. In a pluralistic society a variety of motives and purposes are implicated. The City, like the Congresses and Presidents, however, has principally taken note of a significant historical religious event long celebrated in the Western World. The crèche in the display depicts the historical origins of this traditional event long recognized as a National Holiday.

The narrow question is whether there is a secular purpose for Pawtucket’s display of the crèche. The display is sponsored by the City to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes. The District Court’s inference, drawn from the religious nature of the crèche, that the City has no secular purpose was, on this record, clearly erroneous. . . .

Entanglement is a question of kind and degree. In this case, however, there is no reason to disturb the District Court’s finding on the absence of administrative entanglement. There is no evidence of contact with church authorities concerning the content or design of the exhibit prior to or since Pawtucket’s purchase of the crèche. No expenditures for maintenance of the crèche have been necessary; and since the City owns the crèche, now valued at $200, the tangible material it contributes is de minimis. In many respects the display requires far less ongoing, day-to-day interaction between church and state than religious paintings in public galleries. There is nothing here, of course, like the “comprehensive, discriminating, and continuing state surveillance” or the “enduring entanglement” present in Lemon. . . .

We hold that, notwithstanding the religious significance of the crèche, the City of Pawtucket has not violated the Establishment Clause of the First Amendment.

Justice BLACKMUN, with whom Justice STEVENS joins, dissenting.

As Justice BRENNAN points out, the logic of the Court’s decision in Lemon compels an affirmance here. If that case and its guidelines mean anything, the presence of Pawtucket’s crèche in a municipally sponsored display must be held to be a violation of the First Amendment.

Not only does the Court’s resolution of this controversy make light of our precedents, but also, ironically, the majority does an injustice to the crèche and the message it manifests. While certain persons, including the Mayor of Pawtucket, undertook a crusade to “keep Christ in Christmas,” the Court today has declared that presence virtually irrelevant. The majority urges that the display, “with or without a crèche,” “recall[s] the religious nature of the Holiday,” and “engenders a friendly community spirit of good will in keeping with the season.” Before the District Court, an expert witness for the city made a similar, though perhaps more candid, point, stating that Pawtucket’s display invites people “to participate in the Christmas spirit, brotherhood, peace, and let loose with their money.” The crèche has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial purposes, but devoid of any inherent meaning and incapable of enhancing the religious tenor of a display of which it is an integral part. The city has its victory—but it is a Pyrrhic one indeed.

The import of the Court’s decision is to encourage use of the crèche in a municipally sponsored display, a setting where Christians feel constrained in acknowledging its symbolic meaning and non-Christians feel alienated by its presence. Surely, this is a misuse of a sacred symbol. Because I cannot join the Court in denying either the force of our precedents or the sacred message that is at the core of the crèche, I dissent and join Justice BRENNAN’s opinion.

Bibliography

Alley, Robert S., ed. James Madison on Religious Liberty. Buffalo, NY: Prometheus Books, 1985.

Smith, Steven D. Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom. New York: Oxford University Press, 1995.

Strasser, Mark. “Passive Observers, Passive Displays, and the Establishment Clause.” 14 Lewis and Clark Law Review 1123 (2010).

It was unclear whether Wallace doomed all moment of silence statutes. Justice Sandra Day O’Connor, who concurred in the judgment, pointed out that a moment of silence should be treated differently than school-sponsored prayer or Bible readings because it “is not inherently religious.” As a result, she suggested that moment of silence statutes might be valid because a student could participate without compromising his religious beliefs. “[A] student who objects to prayer is left to his or her own thoughts, and is not compelled to listen to the prayers or thoughts of others.” She argued that, even if a statute provides that students may pray, the state has not necessarily encouraged prayer over other alternatives. On the contrary, the state has simply indicated that voluntary prayer is a permissible alternative. Nevertheless, Justice O’Connor agreed that the Alabama statute should be invalidated because it was motivated by a religious purpose. However, she argued that judicial “inquiry into the purpose of the legislature in enacting a moment of silence law should be deferential and limited. [If] a legislature expresses a plausible secular purpose for a moment of silence statute in either the text or the legislative history, or if the statute disclaims an intent to encourage prayer over alternatives during a moment of silence, then courts should generally defer to that stated intent. . . .”

Justice Byron White, dissenting, argued that a majority of the Court would approve a statute that provided for a moment of silence without mentioning prayer, and he doubted that the Alabama statute should be struck down merely because it did. In his view, the final statute simply cleared up the question of whether students could engage in voluntary prayer during the moment of silence. Justice William Rehnquist, who also dissented, argued that the framers of the Bill of Rights did not intend to prohibit the states from “endorsing” prayer. He noted that “George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.”

Wallace is important because it strikes down a moment of silence (for meditation or prayer) statute as unconstitutional. Wallace does not foreclose the possibility of a valid moment of silence statute. However, if such statutes are to be upheld, they must be true “moment of silence” provisions and must be motivated by a secular purpose.

Justice STEVENS delivered the opinion of the Court.

. . . As is plain from its text, the First Amendment was adopted to curtail the power of Congress to interfere with the individual’s freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience. Until the Fourteenth Amendment was added to the Constitution, the First Amendment’s restraints on the exercise of federal power simply did not apply to the States. But when the Constitution was amended to prohibit any State from depriving any person of liberty without due process of law, that Amendment imposed the same substantive limitations on the States’ power to legislate that the First Amendment had always imposed on the Congress’ power. This Court has confirmed and endorsed this elementary proposition of law time and time again. . . .

The State of Alabama, no less than the Congress of the United States, must respect that basic truth.

When the Court has been called upon to construe the breadth of the Establishment Clause, it has examined the criteria developed over a period of many years. Thus, in Lemon v. Kurtzman we wrote:

It is the first of these three criteria that is most plainly implicated by this case. As the District Court correctly recognized, no consideration of the second or third criteria is necessary if a statute does not have a clearly secular purpose. For even though a statute that is motivated in part by a religious purpose may satisfy the first criterion, the First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion.

In applying the purpose test, it is appropriate to ask “whether government’s actual purpose is to endorse or disapprove of religion.” In this case, the answer to that question is dispositive. For the record not only provides us with an unambiguous affirmative answer, but it also reveals that the enactment of § 16–1–20.1 was not motivated by any clearly secular purpose—indeed, the statute had no secular purpose.

There are only three textual differences between § 16–1–20.1 and § 16–1–20: (1) the earlier statute applies only to grades one through six, whereas § 16–1–20.1 applies to all grades; (2) the earlier statute uses the word “shall” whereas § 16–1–20.1 uses the word “may”; (3) the earlier statute refers only to “meditation” whereas § 16–1–20.1 refers to “meditation or voluntary prayer.” The first difference is of no relevance in this litigation because the minor appellees were in kindergarten or second grade during the 1981–1982 academic year. The second difference would also have no impact on this litigation because the mandatory language of § 16–1–20 continued to apply to grades one through six. Thus, the only significant textual difference is the addition of the words “or voluntary prayer.”

The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every student’s right to engage in voluntary prayer during an appropriate moment of silence during the schoolday. The 1978 statute already protected that right, containing nothing that prevented any student from engaging in voluntary prayer during a silent minute of meditation. Appellants have not identified any secular purpose that was not fully served by § 16–1–20 before the enactment of § 16–1–20.1. Thus, only two conclusions are consistent with the text of § 16–1–20.1: (1) the statute was enacted to convey a message of state endorsement and promotion of prayer; or (2) the statute was enacted for no purpose. No one suggests that the statute was nothing but a meaningless or irrational act.

We must, therefore, conclude that the Alabama Legislature intended to change existing law and that it was motivated by the same purpose that the Governor’s answer to the second amended complaint expressly admitted; that the statement inserted in the legislative history revealed; and that Senator Holmes’ testimony frankly described. The legislature enacted § 16–1–20.1, despite the existence of § 16–1–20 for the sole purpose of expressing the State’s endorsement of prayer activities for one minute at the beginning of each schoolday. The addition of “or voluntary prayer” indicates that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.

The importance of that principle does not permit us to treat this as an inconsequential case involving nothing more than a few words of symbolic speech on behalf of the political majority. For whenever the State itself speaks on a religious subject, one of the questions that we must ask is “whether the government intends to convey a message of endorsement or disapproval of religion.” . . . Keeping in mind, as we must, “both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded,” we conclude that § 16–1–20.1 violates the First Amendment. . . .

Some who trouble to read the opinions in these cases will find it ironic—perhaps even bizarre—that on the very day we heard arguments in the cases, the Court’s session opened with an invocation for Divine protection. Across the park a few hundred yards away, the House of Representatives and the Senate regularly open each session with a prayer. These legislative prayers are not just one minute in duration, but are extended, thoughtful invocations and prayers for Divine guidance. They are given, as they have been since 1789, by clergy appointed as official chaplains and paid from the Treasury of the United States. Congress has also provided chapels in the Capitol, at public expense, where Members and others may pause for prayer, meditation—or a moment of silence.

Inevitably some wag is bound to say that the Court’s holding today reflects a belief that the historic practice of the Congress and this Court is justified because members of the Judiciary and Congress are more in need of Divine guidance than are schoolchildren. Still others will say that all this controversy is “much ado about nothing,” since no power on earth—including this Court and Congress—can stop any teacher from opening the schoolday with a moment of silence for pupils to meditate, to plan their day—or to pray if they voluntarily elect to do so.

I make several points about today’s curious holding.

(a) It makes no sense to say that Alabama has “endorsed prayer” by merely enacting a new statute “to specify expressly that voluntary prayer is one of the authorized activities during a moment of silence.” To suggest that a moment-of-silence statute that includes the word “prayer” unconstitutionally endorses religion, while one that simply provides for a moment of silence does not, manifests not neutrality but hostility toward religion. For decades our opinions have stated that hostility toward any religion or toward all religions is as much forbidden by the Constitution as is an official establishment of religion. The Alabama Legislature has no more “endorsed” religion than a state or the Congress does when it provides for legislative chaplains, or than this Court does when it opens each session with an invocation to God. Today’s decision recalls the observations of Justice Goldberg:

The several preceding opinions conclude that the principal difference between § 16–1–20.1 and its predecessor statute proves that the sole purpose behind the inclusion of the phrase “or voluntary prayer” in § 16–1–20.1 was to endorse and promote prayer. This reasoning is simply a subtle way of focusing exclusively on the religious component of the statute rather than examining the statute as a whole. Such logic—if it can be called that—would lead the Court to hold, for example, that a state may enact a statute that provides reimbursement for bus transportation to the parents of all schoolchildren, but may not add parents of parochial school students to an existing program providing reimbursement for parents of public school students. Congress amended the statutory Pledge of Allegiance 31 years ago to add the words “under God.” Do the several opinions in support of the judgment today render the Pledge unconstitutional? That would be the consequence of their method of focusing on the difference between § 16–1–20.1 and its predecessor statute rather than examining § 16–1–20.1 as a whole. Any such holding would of course make a mockery of our decisionmaking in Establishment Clause cases. And even were the Court’s method correct, the inclusion of the words “or voluntary prayer” in § 16–1–20.1 is wholly consistent with the clearly permissible purpose of clarifying that silent, voluntary prayer is not forbidden in the public school building.

The Court’s extended treatment of the “test” of Lemon v. Kurtzman, suggests a naive preoccupation with an easy, bright-line approach for addressing constitutional issues. We have repeatedly cautioned that Lemon did not establish a rigid caliper capable of resolving every Establishment Clause issue, but that it sought only to provide “signposts.” “In each [Establishment Clause] case, the inquiry calls for line-drawing; no fixed, per se rule can be framed.” In any event, our responsibility is not to apply tidy formulas by rote; our duty is to determine whether the statute or practice at issue is a step toward establishing a state religion. Given today’s decision, however, perhaps it is understandable that the opinions in support of the judgment all but ignore the Establishment Clause itself and the concerns that underlie it.

The Court today has ignored the wise admonition of Justice Goldberg that “the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.” The innocuous statute that the Court strikes down does not even rise to the level of “mere shadow.” JUSTICE O’CONNOR paradoxically acknowledges: “It is difficult to discern a serious threat to religious liberty from a room of silent, thoughtful schoolchildren.” I would add to that, “even if they choose to pray.”

The mountains have labored and brought forth a mouse.

Bibliography

Cook, David W. “The Un-Established Establishment Clause: A Circumstantial Approach to Establishment Clause Jurisprudence.” Texas Wesleyan Law Review 11 (2004): 71.

Kurland, Philip B. “Of Church and State and the Supreme Court.” University of Chicago Law Review 29 (1961): 1.

Redlich, Norman. “Separation of Church and State: The Burger Court’s Tortuous Journey.” Notre Dame Law Review 60 (1985): 1094.

Schwarz, Alan. “No Imposition of Religion: The Establishment Clause Value.” Yale Law Journal 77 (1998): 692.

Weaver, Russell L., and Donald E. Lively. Understanding the First Amendment. Newark, NJ: LexisNexis, 2012, 256–57.

The school district argued that the “Guidelines for Civic Occasions,” and the advice given to clergy that prayers should be regarded as nonsectarian, should be treated as a “good-faith attempt by the school to ensure [that] sectarianism which is so often the flashpoint for religious animosity be removed from the graduation ceremony.” While the Court was sympathetic to this concern, noting that ideas and images associated with a particular religion may foster “sectarian rivalry,” the Court questioned the legitimacy of the State’s decision to create guidelines for prayer. Referring to its prior holdings, the Court emphasized that it is “[no] part of the business of government to compose official prayers for any group [of] American people to recite as a part of a religious program carried on by government.” In the Court’s view, “religious beliefs and religious expression are too precious to [be] prescribed by the State. It must not be forgotten [that] these same Clauses exist to protect religion from government interference. . . .”

The school district tried to characterize its guidelines as a program that offered graduation participants a choice of whether to participate in prayer or to refrain from participation, and that “our constitutional vision of a free society requires confidence in our own ability to accept or reject ideas of which we do not approve.” The Court disagreed, noting that it has always been concerned regarding the presence of coercive pressures in the elementary and secondary school context. The Court worried that the prayer would place protestors in the uncomfortable position of participating in the prayer, or of protesting, and concluded that many high school students would feel coerced into participating by peer pressure. The Court held that the “government may no more use social pressure to enforce orthodoxy than it may use more direct means.”

The Court also expressed concern regarding the potential for divisiveness. It feared that interest groups might disagree over the choice of a clergy member to conduct the ceremony and argue over content. The Court concluded that “Divisiveness [can] attend any state decision respecting religions, and neither its existence nor its potential necessarily invalidates the State’s attempts to accommodate religion in all cases.” The Court worried that there was greater potential for divisiveness in this case because the case involved a religious exercise in which students were effectively forced to participate.

Justice Harry Blackmun, joined by Justices John Paul Stevens and Sandra Day O’Connor, concurred: “[W]hen the government ‘compose[s] official prayers,’ selects the member of the clergy to deliver the prayer, has the prayer delivered at a public school event that is planned, supervised and given by school officials, and pressures students to attend and participate in the prayer, there can be no doubt that the government is advancing and promoting religion. [I]t is not enough that the government restrain from compelling religious practices: It must not engage in them either.” Justice Souter, joined by Justices Stevens and O’Connor, also concurred, rejecting the notion that the establishment clause permits “nonpreferential” state promotion of religion or allows the government to support a “diversity” of religious beliefs. He argued that such an approach would require the government, and the courts, to “make wholly inappropriate judgments about the number of religions the State should sponsor and the relative frequency with which it should sponsor each.”

Justice Scalia also raised other concerns. For example, he noted that “the present case involves a community’s celebration of one of the milestones in its young citizens’ lives, and it is a bold step for this Court to seek to banish from that occasion [the] expression of gratitude to God that a majority of the community wishes to make.” In addition, he rejected the Court’s argument that a student who sits in respectful silence, while others are praying, can be deemed to have joined in the prayer. On the contrary, he argued that maintaining “respect for the religious observances of others is a fundamental civic virtue that government (including the public schools) can and should cultivate.” Moreover, he argued that graduation is a milestone because it marks the transition from childhood to adulthood, and graduating students should be treated differently than younger, more impressionable, students. In addition, he argued that attendance at school graduation is voluntary. The majority responded that to “say a teenage student has a real choice not to attend her high school graduation is formalistic. [I]n our society and in our culture high school graduation is one of life’s most significant occasions.”

The Lee opinion is important because it is consistent with the Court’s long-standing precedent prohibiting prayer in the public school context. The Court continues to adhere to the proposition that it is not the business of government to compose prayers for people.

Justice KENNEDY delivered the opinion of the Court.

The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which “establishes a [state] religion or religious faith, or tends to do so.” The State’s involvement in the school prayers challenged today violates these central principles.

That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State. The reason for the choice of a rabbi is not disclosed by the record, but the potential for divisiveness over the choice of a particular member of the clergy to conduct the ceremony is apparent. . . .

We are asked to recognize the existence of a practice of nonsectarian prayer, prayer within the embrace of what is known as the Judeo–Christian tradition, prayer which is more acceptable than one which, for example, makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint. There may be some support, as an empirical observation, to the statement of the Court of Appeals for the Sixth Circuit, picked up by Judge Campbell’s dissent in the Court of Appeals in this case, that there has emerged in this country a civic religion, one which is tolerated when sectarian exercises are not. If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself.

The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. . . .

The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position. We turn our attention now to consider the position of the students, both those who desired the prayer and she who did not. . . .

As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. Our decisions in Engel v. Vitale and School Dist. of Abington, recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi’s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it. . . .

For the reasons we have stated, the judgment of the Court of Appeals is Affirmed.

Justice SCALIA, with whom THE CHIEF JUSTICE, Justice WHITE, and Justice THOMAS join, dissenting.

Three Terms ago, I joined an opinion recognizing that the Establishment Clause must be construed in light of the “[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage.” That opinion affirmed that “the meaning of the Clause is to be determined by reference to historical practices and understandings.” It said that “[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause.”

These views of course prevent me from joining today’s opinion, which is conspicuously bereft of any reference to history. 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, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. 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. . . .

Bibliography

Delaney, Colin. “The Graduation Prayer Cases: Coercion by Any Other Name.” Vanderbilt Law Review 52 (1999): 1783.

Mangum, R. Collin. “Shall We Pray? Graduation Prayers and Establishment Paradigms.” Creighton Law Review 26 (1993): 1027.

Weaver, Russell L., and Donald E. Lively. Understanding the First Amendment. Newark, NJ: LexisNexis, 2012, 278–88.

Agostini v. Felton concerned long-running establishment clause litigation that arose in New York City. Under Title I of the Secondary Education Act of 1965, Congress authorized the states to provide remedial education, guidance, and job counseling to students who were failing or at risk of failing. In the Court’s prior decision in Aguilar v. Felton (1985), New York City’s method of distributing Title I funds was struck down. Since 90 percent of all private school students were in sectarian schools, the Board initially arranged to transport children to public schools for after-school Title I instruction. Attendance was poor because the teachers and children were tired, as well as because parents were concerned about safety issues. As a result, the Board decided to conduct the Title I instruction at the private schools themselves during regular school hours, but to place restrictions designed to keep the teachers from inculcating religion. In Aguilar, the Court struck the New York City program down, applying the so-called Lemon test. Under that test, a Court must examine three criteria in deciding whether governmental action passes muster under the establishment clause: “First, the action must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the action must not foster ‘an excessive government entanglement with religion’” Lemon v. Kurtzman (1971). On remand, the trial court permanently enjoined the Board “from using public funds for any plan or program under [Title I] to the extent that it requires, authorizes or permits public school teachers and guidance counselors to provide teaching and counseling services on the premises of sectarian schools. . . .”

Subsequently, New York City modified its Title I program to revert to its prior practice of providing instruction at public school sites, at leased sites, and in mobile instructional units (essentially vans converted into classrooms) parked near the sectarian school. The Board also offered computer-aided instruction at the private schools because it did not require public employees to be physically present on the premises of a religious school. However, the additional costs of complying with Aguilar’s mandate in these various ways was significant. After 1986–1987, the Board spent over $100 million providing computer-aided instruction, leasing sites and mobile instructional units, and transporting students to those sites. These expenditures reduced the amount of money that New York had available for remedial education, and forced New York to reduce the number of students receiving Title I benefits.

In Agostini, the Court reaffirmed the first two parts of the Lemon test. However, the Court indicated that it had altered its approach for determining “whether aid to religion has an impermissible effect.” The Court specifically abandoned its prior presumption that the “placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.” The Court also abandoned its presumption that all government aid that directly aids the educational function of religious schools is invalid. Relying on its new understanding of the law, the Court decided to lift the injunction. It noted that “there is no reason to presume that, simply because she enters a parochial school classroom, a full-time public employee [will] depart from her assigned duties and instructions and embark on religious indoctrination.” The Court also held that it could not find that a program placing full-time public employees on parochial campuses would lead to religious indoctrination.

The Court ultimately moved toward a “neutrality” test for evaluating governmental programs. Under that test, a “financial incentive to undertake religious indoctrination [is] not present [where] the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.” In applying this new criteria to New York City’s program, the Court concluded that “it is clear that Title I services are allocated on the basis of criteria that neither favor nor disfavor religion. The services are available to all children who meet the Act’s eligibility requirements, no matter what their religious beliefs or where they go to school. The Board’s program does not, therefore, give aid recipients any incentive to modify their religious beliefs or practices in order to obtain those services.”

Justice Souter, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer, dissented. He regarded the Title I funds, as construed by Agostini’s majority, as impermissibly subsidizing religion. He also worried about the potential implications of the decision: “[If] a State may constitutionally enter the schools to [teach, it must be] free to assume [the] entire cost of instruction [in any] secular subject in any religious school.” Nevertheless, he would have upheld off-site remedial instruction on the basis that “it is less likely to supplant some of what would otherwise go on inside them and to subsidize what remains.” In addition, he worried that the presence of public school teachers in parochial schools might signal state approval of the school’s mission. Finally, he contended that, when “aid goes overwhelmingly to one religious denomination, minimal contact between state and church is the less likely to feed the resentment of other religions that would like access to public money for their own worthy projects.”

Agostini’s implications are far from clear. In a number of recent decisions, the Court has suggested that governments may provide “neutral” subsidies to educational institutions, including religious institutions. These decisions have allowed government to provide increasing amounts of aid to sectarian schools. Whether this line of jurisprudence will be expanded, and potentially result in broad subsidies for religious schools, remains to be seen. Certainly, decisions like Agostini, which loosen the Court’s approach to issues like entanglement and divisiveness, create the potential for broader subsidies.

Justice O’CONNOR delivered the opinion of the Court.

Nor under current law can we conclude that a program placing full-time public employees on parochial campuses to provide Title I instruction would impermissibly finance religious indoctrination. In all relevant respects, the provision of instructional services under Title I is indistinguishable from the provision of sign-language interpreters under the IDEA. Both programs make aid available only to eligible recipients. That aid is provided to students at whatever school they choose to attend. Although Title I instruction is provided to several students at once, whereas an interpreter provides translation to a single student, this distinction is not constitutionally significant. Moreover, as in Zobrest, Title I services are by law supplemental to the regular curricula. These services do not, therefore, “reliev[e] sectarian schools of costs they otherwise would have borne in educating their students. . . .

Not all entanglements, of course, have the effect of advancing or inhibiting religion. Interaction between church and state is inevitable, and we have always tolerated some level of involvement between the two. Entanglement must be “excessive” before it runs afoul of the Establishment Clause. . . .

To summarize, New York City’s Title I program does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement. We therefore hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards such as those present here. The same considerations that justify this holding require us to conclude that this carefully constrained program also cannot reasonably be viewed as an endorsement of religion. Accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids’ Shared Time program, are no longer good law. . . .

It may be objected that there is some subsidy in remedial education even when it takes place off the religious premises, some subsidy, that is, even in the way New York City has administered the Title I program after Aguilar. In these circumstances, too, what the State does, the religious school need not do; the schools save money and the program makes it easier for them to survive and concentrate their resources on their religious objectives. This argument may, of course, prove too much, but if it is not thought strong enough to bar even off-premises aid in teaching the basics to religious school pupils (an issue not before the Court in Aguilar or today), it does nothing to undermine the sense of drawing a line between remedial teaching on and off premises. The off-premises teaching is arguably less likely to open the door to relieving religious schools of their responsibilities for secular subjects simply because these schools are less likely (and presumably legally unable) to dispense with those subjects from their curriculums or to make patently significant cutbacks in basic teaching within the schools to offset the outside instruction; if the aid is delivered outside of the schools, it is less likely to supplant some of what would otherwise go on inside them and to subsidize what remains. On top of that, the difference in the degree of reasonably perceptible endorsement is substantial. Sharing the teaching responsibilities within a school having religious objectives is far more likely to telegraph approval of the school’s mission than keeping the State’s distance would do. This is clear at every level. As the Court observed in Ball, “[t]he symbolism of a union between church and state [effected by placing the public school teachers into the religious schools] is most likely to influence children of tender years, whose experience is limited and whose beliefs consequently are the function of environment as much as of free and voluntary choice.” When, moreover, the aid goes overwhelmingly to one religious denomination, minimal contact between state and church is less likely to feed the resentment of other religions that would like access to public money for their own worthy projects.

In sum, if a line is to be drawn short of barring all state aid to religious schools for teaching standard subjects, the Aguilar–Ball line was a sensible one capable of principled adherence. It is no less sound, and no less necessary, today. . . .

Bibliography

Mangrum, R. Collin. “State Aid to Students in Religiously Affiliated Schools: Agostini v. Felton.” Creighton Law Review 31 (1998): 1155.

Waite, Jason M. “Agostini v. Felton: Thickening the Establishment Clause Stew.” New England Law Review 33 (1998): 81.

Wasilausky, Ellen M. “See Jane Read the Bible: Does the Establishment Clause Allow School Choice Programs to Include Sectarian Schools after Agostini v. Felton?” Washington and Lee Law Review 56 (1999): 721.

Weaver, Russell L., and Donald E. Lively. Understanding the First Amendment. Newark, NJ: LexisNexis, 2012, 258–62.