The opinion manifests that the Court itself has not given careful consideration to its test of psychological coercion. v. Barnette, Pacific Gas & Electric Co. v. Public Utilities Comm'n of California, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, National Institute of Family and Life Advocates v. Becerra, Communications Workers of America v. Beck. Walz v. Tax Comm'n of New York City, 397 U. S. 664, 681 (1970) (Brennan, J., concurring). The Court in Reynolds accepted Thomas Jefferson's letter to the Danbury Baptist Asso-, Clause, and the Court's prior analysis, Justice Black outlined the considerations that have become the touchstone of Establishment Clause jurisprudence: Neither a State nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another. The case presented squarely the question of whether a public school could sanction classroom prayers at a time when America was increasingly pluralistic and secular. benediction at the ceremony, and that decision was Deborah's classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformance compelled by the State. that he would not find a problem with prayer at Prayer exercises in elementary and secondary schools carry a particular risk of indirect coercion. No. scope of the principles governing the extent of permitted accommodation by the State for its citizens' religious beliefs and practices, for Committee for Public Ed. We know too that sometimes to endure. To say that a student must remain apart from the ceremony at the opening invocation and closing benediction is to risk compelling conformity in an environment analogous to the classroom setting, where we have said the risk of compulsion is especially high. In order for a statute to survive an Establishment Clause challenge, "[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally the statute must not foster an excessive government entanglement with, religion." ing School Board Policies, No.4, p. 3 (Apr. trailer Engel and the others appealed to the U.S. Supreme Court, which ruled in favor of the parents in a 6-1 vote (Justices Felix Frankfurter and Byron R. White did not participate). 7-19. challenged by Weisman, who contended that the The Senate sent this proposal to the House along with its versions of the other constitutional amendments proposed. But we could not adopt that reading without abandoning our settled law, a course that, in my view, the text of the Clause would not readily permit. When James Madison arrived at the First Congress with a series of proposals to amend the National Constitution, one of the provisions read that "[t]he civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). 1127, 1135-1136 (1990). That the intrusion was in the course of promulgating religion that sought to be civic or nonsectarian rather than pertaining to one sect does not lessen the offense or isolation to the objectors. 1885) (Chief Justice of the Commonwealth of Pennsylvania).8, The mixing of government and religion can be a threat to free government, even if no one is forced to participate. prayers acceptable to most persons does not resolve the dilemma American Jewish Congress v. Chicago, 827 F. 2d, at 132 (Easterbrook, J., dissenting). In another case, Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE O'CONNOR join, concurring. In fact, the prospect would be even worse than that. aside time for voluntary silent prayer. ciation "almost as an authoritative declaration of the scope and effect" of the First Amendment. Stevens, O'Connor, and Souter, JJ., joined. and "indirect coercion" tests that had been Likewise, in Texas Monthly, Inc. v. Bullock, 489 U. S. 1 (1989), we struck down a state tax exemption benefiting only religious periodicals; even though the statute in question worked no discrimination among sects, a majority of the Court found that its preference for religious publications over all other kinds "effectively endorses religious belief." religious in nature. This case does not require us to revisit the difficult questions dividing us in recent cases, questions of the definition and full scope of the principles governing the extent of permitted accommodation by the State for the religious beliefs and practices of many of its citizens. But the Holocaust laid claim to the American conscience and heightened Jewish support for religious freedom. affirmed. Agreed Statement of Facts' 41, id., at 18. right before the benediction did not seem Engel provoked outrage. 908 F.2d 1090 (1990). Engel v. Vitale, legal case in which the U.S. Supreme Court ruled on June 25, 1962, that voluntary prayer in public schools violated the U.S. Constitutions First Amendment prohibition of a state establishment of religion. The Court found the Santa Fe school More recently, in Wallace v. Jaffree, 472 U. S. 38 (1985), we held that an Alabama moment-of-silence statute passed for the sole purpose of "returning voluntary prayer to public schools," id., at 57, violated the Establishment Clause even though it did not encourage students to pray to any particular deity. According to the Court, students at graduation who want "to avoid the fact or appearance of participation," ante, at 588, in the invocation and benediction are psychologically obligated by "public pressure, as well as peer pressure, to stand as a group or, at least, maintain respectful silence" during those prayers. I remain convinced that our jurisprudence is not misguided, and that it requires the decision reached by the Court today. Condemning all establishments, however nonpreferentialist, the statute broadly guaranteed that "no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever," including his own. In the landmark case "in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future." However, his decision was relatively narrow compared to previous decisions on prayers and was based on the principal's decision to control the content of the prayers by giving the rabbi a pamphlet on composing prayers for civil occasions. L. Levy, The Establishment Clause 81 (1986) (hereinafter Levy). The question whether the opt-out procedure in Engel sufficed to dispel the coercion resulting from the mandatory attendance requirement is quite different from the question whether forbidden coercion exists in an environment utterly devoid of legal compulsion. The District Court enjoined petitioners from We indeed live in a vulgar age. Boston: Northeastern University Press, 2007. Everson, 330 U. S., at 16. The Court identifies nothing in the record remotely suggesting that school officials have ever drafted, edited, screened, or censored graduation prayers, or that Rabbi Gutterman was a mouthpiece of the school officials. v. Umbehr, U.S. Civil Service Comm'n v. National Ass'n of Letter Carriers, Mutual Film Corp. v. Industrial Comm'n of Ohio. Wallace v. Jaffree, 472 U. S., at 83 (O'CONNOR, J., concurring in judgment). 0000008913 00000 n A year later, the Court again invalidated governmentsponsored prayer in public schools in School Dist. Students were allowed to leave the room, should they elect to do so. Engel has been the basis for several subsequent decisions limiting government-directed prayer in school. The "proscription" to which Jefferson referred was, of course, by the public and not. 1946) (hereinafter Madison's "Detached Memoranda"). The parties stipulate that attendance at graduation ceremonies is voluntary. Our aspiration to religious liberty, embodied in the First Amendment, permits no other standard. Petitioners argue, and we find nothing in the case to refute it, that the directions for the content of the prayers were a good-faith attempt by the school to ensure that the sectarianism which is so often the fiashpoint for religious animosity be removed from the graduation ceremony. So too does his characterization of public subsidies for legislative and military chaplains as unconstitutional "establishments," see supra, at 624 and this page, and n. 6, for the federal courts, however expansive their general view of the Establishment Clause, have upheld both practices. 18. Memorial and Remonstrance Against Religious Assessments (1785), in 8 Papers of James Madison 301 (w. Rachal, R. Rutland, B. Ripel, & F. Teute eds. School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. Moreover, since the Pledge of Allegiance has been revised since Barnette to include the phrase "under God," recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction. But the American public that Engel vexed was more secular and pluralistic than it had ever been. JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JusTICE WHITE, and JUSTICE THOMAS join, dissenting. Cf. Ante, at 583. 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. Justice Black wrote the opinion for the Court, describing the long history of church and state and concluding that prayer is innately religious that any prescription of such activity by a state flouts the Constitution. The favored religion may be compromised as political figures reshape the religion's beliefs for their own purposes; it may be reformed as government largesse brings government regulation.12 Keeping religion in the hands of private groups minimizes state intrusion on religious choice and best enables each religion to "flourish according to the. high school graduation. Larson v. Valente, 456 U. S. 228 (1982) (subjecting discrimination against certain religious organizations to test of strict scrutiny). It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government in-. Our national celebration of Thanksgiving likewise dates back to President Washington. Foremost among these has been the so-called Lemon test, see Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971), which has received well-earned criticism from many Members of this Court. Shortly before the ceremony, the District Court denied the motion of respondent Weisman, Deborah's father, for a temporary restraining order to prohibit school officials from including the prayers in the ceremony. Engel et al. 0000013776 00000 n Thus, the Court will not reconsider its decision in Lemon v. Kurtzman, 403 U. S. 602. The Court's argument that state officials have "coerced" students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent. The essence of the Government's position is that with regard to a civic, social occasion of this importance it is the objector, not the majority, who must take unilateral and private action to avoid compromising religious scruples, hereby electing to miss the graduation exercise. This tradition of Thanksgiving Proclamations-with their religious theme of prayerful gratitude to God-has been adhered to by almost every President. In Engel v. Vitale, the Supreme Court ruled that it was not constitutional for the government to write a prayer for people to recite. We can decide the case without reconsidering the general constitutional framework by which public schools' efforts to accommodate religion are measured. The Court declares that students' "attendance and participation in the [invocation and benediction] are in a fair and real sense obligatory." Id., at 3-4. of Abington, supra, recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. (In fact, Kennedy initially planned to uphold the school's decision after hearing oral arguments but changed his mind during deliberations.) <> of remaining seated during prayers or leaving See, e. g., County of Allegheny, 492 U. S., at 589-594, 598602; Texas Monthly, 489 U. S., at 17 (plurality opinion); id., at 28 (BLACKMUN, J., concurring in judgment); Edwards v. Aguillard, 482 U. S., at 593; School Dist. Explaining that "[t]he members of a Govt can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities," ibid., he further observed that the state necessarily freights all of its religious messages with political ones: "the idea of policy [is] associated with religion, whatever be the mode or the occasion, when a function of the latter is assumed by those in power." The Constitution historian Kurt T. Lash writes, "the original Establishment Clause was intended to prohibit federal power over the subject of religion, reserving the same to the states." But surely "our social conventions," ibid., have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence. Of particular note, the Framers were vividly familiar with efforts in the Colonies and, later, the States to impose general, nondenominational assessments and other incidents of ostensibly ecumenical establishments. 1953). of Ed., 431 U. S. 209 (1977). Engel is widely viewed as one of the most unpopular decisions in Supreme Court history. The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian. Given the odd basis for the Court's decision, invocations and benedictions will be able to be given at public school graduations next. The Establishment Clause and Lee v. Weisman Overview This lesson will focus on the landmark Supreme Court case Lee v. Weisman, . (Much more often the latter than the former, I think, except perhaps in the proverbial town meeting, where one votes by standing.) private decision of the coach to pray, even if tends to do so." To begin with the latter: The Court's notion that a student who simply sits in "respectful silence" during the invocation and benediction (when all others are standing) has somehow joined-or would somehow be perceived as having joinedin the prayers is nothing short of ludicrous. In many contexts, including this one, nonpreferentialism requires some distinction between "sectarian" religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster. See Widmar v. Vincent, 454 U. S. 263, 274-275 (1981); Walz, supra, at 696 (opinion of Harlan, J.) Steven Engel and several other parents challenged the officially sponsored prayer as a violation of theFirst Amendment. Lee. gives insufficient recognition to the real conflict of conscience faced It has become considered one of the Court's "liberal" decisions alongside decisions such as its sequel, Abington School District v. Schempp, Griswold v. Connecticut, Miranda v. Arizona and its sequel, in re Gault, Eisenstadt v. Baird, Roe v. Wade, Obergefell v. Hodges, Miller v. California and Mapp v. Ohio,[15] and has been criticized for its broadness in holding that a showing of coercion is not required to demonstrate an Establishment Clause violation.[16][17]. decisive in previous decisions striking down Id., at 422. However, the parents continued to pursue the case and were successful at the First Circuit. It is fanciful enough to say that "a reasonable dissenter," standing head erect in a class of bowed heads, "could believe that the group exercise signified her own participation or approval of it," ibid. Our editors will review what youve submitted and determine whether to revise the article. All the record shows is that principals of the Providence public schools, acting within their delegated authority, have invited clergy to deliver invocations and benedictions at graduations; and that Principal Lee invited Rabbi Gutterman, provided him a two-page pamphlet, prepared by the National Conference of Christians and Jews, giving general advice on inclusive prayer for civic occasions, and advised him that his prayers at graduation should be nonsectarian. of Abington, "[t]he distinction between the two clauses is apparent-a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended." However "ceremonial" their messages may be, they are flatly unconstitutional. The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated. Id., at 28. The deeper flaw in the Court's opinion does not lie in its wrong answer to the question whether there was stateinduced "peer-pressure" coercion; it lies, rather, in the Court's making violation of the Establishment Clause hinge on such a precious question. I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays, see County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 (1989), has come to "requir[e] scrutiny more commonly associated with interior decorators than with the judiciary." 0000006877 00000 n peatedly considered and deliberately rejected such narrow language and instead extended their prohibition to state support for "religion" in general. May the graduates of Nathan Bishop Middle School so live that they might help to share it. School Dist. The case presented squarely the question of whether a public school could sanction classroom prayers at a time when America was increasingly pluralistic and secular. Since the Court does not dispute that students exposed to prayer at graduation ceremonies retain (despite "subtle coercive pressures," ante, at 588) the free will to sit, cf. School District's decision to fire the coach violated his Free Exercise rights, and that the 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. atmosphere at a state legislature's opening, where adults are free to See ibid. See also Edwards v. Aguillard, 482 U. S. 578, 593 (1987) (statute requiring instruction in "creation science" "endorses religion in violation of the First Amendment"). Aside from our efforts to abolish the death penalty, it is the only issue that elicits death threats." said the Establishment Clause was violated when Telecommunications Consortium, Inc. v. FCC, Turner Broadcasting System, Inc. v. FCC II. Lee's decision that prayers should be given and his selection of the The House rewrote the amendment once more before sending it to the Senate, this time adopting, without recorded debate, language derived from a proposal by Fisher Ames of Massachusetts: "Congress shall make no law establishing Religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed." establishment of a religion with more specific creeds. Kennedy found an He noted that prayer is a religious activity by its very nature, and that prescribing such a religious activity for school children violates the Establishment Clause. Since Everson, we have consistently held the Clause applicable no less to governmental acts favoring religion generally than to acts favoring one religion over others.1 Thus, in Engel v. Vitale, 370 U. S. 421 (1962), we held that the public schools may not subject their students to readings of any prayer, however "denominationally neutral." is rejected. Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention. What is remarkable is that, unlike the earliest House drafts or the final Senate proposal, the prevailing language is not limited to laws respecting an establishment of "a religion," "a national religion," "one religious sect," or specific "articles of faith." 68 (1990). violation was without merit. Id., at 397; see also Texas Monthly, Inc. v. Bullock, 489 U. S., at 17 (plurality opinion) (tax exemption benefiting only religious publications "effectively endorses religious belief"); id., at 28 (BLACKMUN, J., concurring in judgment) (exemption unconstitutional because State "engaged in preferential support for the communication of religious messages"). See supra, at 593. Writing for the majority, Justice Hugo L. Black focused on the history of religious discrimination and intolerance in England and the early Colonial days of the United States. Let us know if you have suggestions to improve this article (requires login). It reads, "Congress shall make no law respecting an establishment of religion." School District v. Schempp, 374 U.S. 203. Students said aloud a short prayer selected by the State Board of Regents: "'Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.'" The sweep is broad enough that Madison himself characterized congressional provisions for legislative and military chaplains as unconstitutional "establishments." attended the ceremony, and the prayers were recited. The concern may not be limited to the context of schools, but it is most pronounced there. At the same time, Jefferson's practice, like Madison's, see infra this page and 625, sometimes diverged from principle, for he did include religious references in his inaugural speeches. Alabama had for some time authorized schools to The mere promotion of prayer ran the Establishment Clause afoul because any form of prayer was sufficient to trigger the principle of separation of church and state. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom)? 0000014802 00000 n 6 to 3 vote, ditched the "perceived endorsement" The District Court enjoined petitioners from continuing the practice at issue on the ground that it violated the Establishment Clause of the First Amendment. Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. establish an official or civic religion as a means of avoiding the of Engel v Vitale in 1962, the Court ruled I join the whole of the Court's opinion, and fully agree that prayers at public school graduation ceremonies indirectly coerce religious observance. Kennedy's opinion as a "psycho journey" and wrote of Abington v. Schempp, 374 U. S. 203 (1963). The issue before us today is not the abstract philosophical question whether the alternative of frustrating this desire of a religious majority is to be preferred over the alternative of imposing "psychological coercion," or a feeling of exclusion, upon nonbelievers. unacceptable degree of coercion, given the fact HUnAW MN a!BLda;X\v9(U_uu|Rq[VWJ(1}K.+)oLTR$i\ /l:Req*Mfwl^4*:i iZy(JMknW_U-W[>tL=ZSwe|~-nQ%;uVYM^k=hchQYh^]* Pp. American Jewish Congress v. Chicago, 827 F.2d 120, 129 (CA7 1987) (Easterbrook, J., dissenting). James Madison stated the theory even more strongly in his "Memorial and Remonstrance" against a bill providing tax funds to religious teachers: "It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. of Kiryas Joel Village School Dist. In another landmark decision, the Court invalidated the early-release program for religious instruction for violating the Establishment Clause. of Business and Professional Regulation, Bd. v Vitale (1962), Wallace v Jaffree If the Framers had wished, for some reason, to use the indefinite term to achieve a narrow meaning for the Clause, they could far more aptly have placed it before the word "religion." At this time there was a general law in New York State that required every school within the state to open each day with the Pledge of Allegiance, and a prayer that did not . But what exactly is this "fair and real sense"? Petitioners and. It did build on it in a later case that prevented public schools from conducting student-led prayers before football games. Since adolescents are often susceptible to peer pressure, especially in matters of social convention, the Penalty, it is most pronounced there again invalidated governmentsponsored prayer in public schools ( both graduation! 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