OCTOBER TERM, 1991
Syllabus
LEE ET AL.
v. WEISMAN, PERSONALLY AND AS NEXT FRIEND OF
WEISMAN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT
No. 90-1014. Argued November 6, 1991-Decided June 24, 1992
Principals of public middle and high schools in Providence,
Rhode Island, are permitted to invite members of the clergy to give
invocations and benedictions at their schools' graduation
ceremonies. Petitioner Lee, a middle school principal, invited a
rabbi to offer such prayers at the graduation ceremony for Deborah
Weisman's class, gave the rabbi a pamphlet containing guidelines
for the composition of public prayers at civic ceremonies, and
advised him that the prayers should be nonsectarian. 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. Deborah and her family attended the ceremony, and the
prayers were recited. Subsequently, Weisman sought a permanent
injunction barring Lee and other petitioners, various Providence
public school officials, from inviting clergy to deliver
invocations and benedictions at future graduations. It appears
likely that such prayers will be conducted at Deborah's high school
graduation. The District Court enjoined petitioners from continuing
the practice at issue on the ground that it violated the
Establishment Clause of the First Amendment. The Court of Appeals
affirmed.
Held: Including clergy who offer prayers as part of an
official public school graduation ceremony is forbidden by the
Establishment Clause. Pp.586-599.
(a) This Court need not revisit the questions of the definition
and scope of the principles governing the extent of permitted
accommodation by the State for its citizens' religious beliefs and
practices, for the controlling precedents as they relate to prayer
and religious exercise in primary and secondary public schools
compel the holding here. Thus, the Court will not reconsider its
decision in
Lemon v.
Kurtzman, 403 U. S. 602. The
principle that government may accommodate the free exercise of
religion does not supersede the fundamental limitations imposed by
the Establishment Clause, which guarantees at a minimum that a
government may not coerce anyone to support or participate in
religion or its exercise, or otherwise act in a way which
"establishes a
578
Syllabus
[state] religion or religious faith, or tends to do so."
Lynch v.
Donnelly, 465 U. S. 668, 678. Pp.
586-587.
(b) State officials here direct the performance of a formal
religious exercise at secondary schools' promotional and graduation
ceremonies. Lee's decision that prayers should be given and his
selection of the religious participant are choices attributable to
the State. Moreover, through the pamphlet and his advice that the
prayers be nonsectarian, he directed and controlled the prayers'
content. That the directions may have been given in a good-faith
attempt to make the prayers acceptable to most persons does not
resolve the dilemma caused by the school's involvement, since the
government may not establish an official or civic religion as a
means of avoiding the establishment of a religion with more
specific creeds. Pp. 587-590.
(c) The Establishment Clause was inspired by the lesson that in
the hands of government what might begin as a tolerant expression
of religious views may end in a policy to indoctrinate and coerce.
Prayer exercises in elementary and secondary schools carry a
particular risk of indirect coercion.
Engel v.
Vitale, 370 U.
S. 421;
School Dist. of Abington v.
Schempp,
374 U. S. 203.
The school district's supervision and control of a high school
graduation ceremony places subtle and indirect public and peer
pressure on attending students to stand as a group or maintain
respectful silence during the invocation and benediction. A
reasonable dissenter of high school age could believe that standing
or remaining silent signified her own participation in, or approval
of, the group exercise, rather than her respect for it. And the
State may not place the student dissenter in the dilemma of
participating or protesting. Since adolescents are often
susceptible to peer pressure, especially in matters of social
convention, the State may no more use social pressure to enforce
orthodoxy than it may use direct means. The embarrassment and
intrusion of the religious exercise cannot be refuted by arguing
that the prayers are of a
de minimis character, since that
is an affront to the rabbi and those for whom the prayers have
meaning, and since any intrusion was both real and a violation of
the objectors' rights. pp. 590-594.
(d) Petitioners' argument that the option of not attending the
ceremony excuses any inducement or coercion in the ceremony itself
is rejected. In this society, high school graduation is one of
life's most significant occasions, and a student is not free to
absent herself from the exercise in any real sense of the term
"voluntary." Also not dispositive is the contention that prayers
are an essential part of these ceremonies because for many persons
the occasion would lack meaning without the recognition that human
achievements cannot be understood apart from their spiritual
essence. This position fails to acknowledge that what
579
for many was a spiritual imperative was for the Weismans
religious conformance compelled by the State. It also gives
insufficient recognition to the real conflict of conscience faced
by a student who would have to choose whether to miss graduation or
conform to the state-sponsored practice, in an environment where
the risk of compulsion is especially high. Pp. 594-596.
(e) Inherent differences between the public school system and a
session of a state legislature distinguish this case from
Marsh v.
Chambers, 463 U. S. 783, which
condoned a prayer exercise. The atmosphere at a state legislature's
opening, where adults are free to enter and leave with little
comment and for any number of reasons, cannot compare with the
constraining potential of the one school event most important for
the student to attend. pp. 596-598.
908 F.2d
1090, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
BLACKMUN, STEVENS, O'CONNOR, and SOUTER, JJ., joined. BLACKMUN, J.,
post, p. 599, and SOUTER, J.,
post, p. 609, filed
concurring opinions, in which STEVENS and O'CONNOR, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J.,
and WHITE and THOMAS, JJ., joined,
post, p. 631.
Charles
J. Cooper argued the cause for petitioners. With
him on the briefs were Michael A. Carvin, Peter
J. Ferrara,
Robert
J. Cynkar, Joseph A. Rotella, and Jay Alan
Sekulow.
Solicitor General Starr argued the cause for the United States
as amicus curiae urging reversal. With him on the brief were
Assistant Attorney General Gerson, Deputy Solicitor General
Roberts, Deputy Assistant Attorney General McGinnis, and Richard H.
Seamon.
Sandra A. Blanding argued the cause for respondent.
With her on the brief were Steven R. Shapiro and John A.
Powell.*
*Briefs of
amici curiae urging reversal were filed for
the Board of Education of Alpine School District by
Brinton R.
Burbidge and
Merrill F.
Nelson; for the Christian
Legal Society et al. by
Edward McGlynn Gaffney, Michael
J. Woodruff, Samuel E. Ericsson, and
Forest D.
Montgomery; for the Clarendon Foundation by
Kemp R.
Harshman and
Ronald
580
JUSTICE KENNEDY delivered the opinion of the Court. 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. The
question before us is whether including clerical members who offer
prayers as part of the official school graduation ceremony is
consistent with the Religion Clauses of the First Amendment,
provisions the Fourteenth Amendment makes applicable with full
force to the States and their school districts.
D. Maines; for Concerned Women for America et al. by James
Matthew Henderson, Sr., Jordan Lorence, Mark N Troobnick, and
Thomas Patrick Monaghan; for Focus on the Family et al. by Stephen
H. Galebach and Laura D. Millman; for the Liberty Counsel by Mathew
D. Staver; for the National Jewish Commission on Law and Public
Affairs by Nathan Lewin and Dennis Rapps; for the National Legal
Foundation by Robert K. Skolrood and Brian M. McCormick; for the
Rutherford Institute et al. by John W Whitehead, Alexis I. Crow, A.
Eric Johnston, Stephen E. Hurst, Joseph Secola, Thomas S.
Neuberger,
J. Brian Heller, Amy Dougherty, David Melton,
Thomas W Strahan, Robert R. Melnick, William Bonner, Larry Crain, W
Charles Bundren, and James Knicely; for Specialty Research
Associates, Inc., et al. by Jordan Lorence; for the Southern
Baptist Convention Christian Life Commission by Michael K.
Whitehead and James M. Smart, Jr.; and for the United States
Catholic Conference by Mark E. Chopko and Phillip H. Harris.
Briefs of
amici curiae urging affirmance were filed for
Americans for Religious Liberty by
Ronald A. Lindsay; and
for the American Jewish Congress et al. by
Douglas
Laycock.
Briefs of
amici curiae were filed for the State of
Delaware by
Charles M. Oberly III, Attorney General of
Delaware,
Michael F.
Foster, Solicitor General,
David S.
Swayze, and
David B. Ripsom; for the
Council on Religious Freedom et al. by
Lee Boothby, Robert W
Nixon, Walter E. Carson, and
Rolland Truman; for the
Institute in Basic Life Principles by
Joe Reynolds; for the
National Coalition for Public Education and Religious Liberty et
al. by
David B. Isbell and
T. Jeremy Gunn; and for
the National School Boards Association by
Gwendolyn H. Gregory,
August W Steinhilber, and
Thomas A. Shannon.
581
I A
Deborah Weisman graduated from Nathan Bishop Middle School, a
public school in Providence, at a formal ceremony in June 1989. She
was about 14 years old. For many years it has been the policy of
the Providence School Committee and the Superintendent of Schools
to permit principals to invite members of the clergy to give
invocations and benedictions at middle school and high school
graduations. Many, but not all, of the principals elected to
include prayers as part of the graduation ceremonies. Acting for
himself and his daughter, Deborah's father, Daniel Weisman,
objected to any prayers at Deborah's middle school graduation, but
to no avail. The school principal, petitioner Robert E. Lee,
invited a rabbi to deliver prayers at the graduation exercises for
Deborah's class. Rabbi Leslie Gutterman, of the Temple Beth EI in
Providence, accepted.
It has been the custom of Providence school officials to provide
invited clergy with a pamphlet entitled "Guidelines for Civic
Occasions," prepared by the National Conference of Christians and
Jews. The Guidelines recommend that public prayers at nonsectarian
civic ceremonies be composed with "inclusiveness and sensitivity,"
though they acknowledge that "[p]rayer of any kind may be
inappropriate on some civic occasions." App. 20-21. The principal
gave Rabbi Gutterman the pamphlet before the graduation and advised
him the invocation and benediction should be nonsectarian. Agreed
Statement of Facts' 17,
id., at 13.
Rabbi Gutterman's prayers were as follows:
"INVOCATION "God of the Free, Hope of the Brave:
"For the legacy of America where diversity is celebrated and the
rights of minorities are protected, we
582
thank YOU. May these young men and women grow up to enrich
it.
"For the liberty of America, we thank YOU. May these new
graduates grow up to guard it.
"For the political process of America in which all its citizens
may participate, for its court system where all may seek justice we
thank You. May those we honor this morning always turn to it in
trust.
"For the destiny of America we thank YOU. May the graduates of
Nathan Bishop Middle School so live that they might help to share
it.
"May our aspirations for our country and for these young people,
who are our hope for the future, be richly fulfilled.
AMEN" "BENEDICTION
"0 God, we are grateful to You for having endowed us with the
capacity for learning which we have celebrated on this joyous
commencement.
"Happy families give thanks for seeing their children achieve an
important milestone. Send Your blessings upon the teachers and
administrators who helped prepare them.
"The graduates now need strength and guidance for the future,
help them to understand that we are not complete with academic
knowledge alone. We must each strive to fulfill what You require of
us all: To do justly, to love mercy, to walk humbly.
"We give thanks to You, Lord, for keeping us alive, sustaining
us and allowing us to reach this special, happy occasion.
AMEN"
Id., at 22-23.
583
The record in this case is sparse in many respects, and we are
unfamiliar with any fixed custom or practice at middle school
graduations, referred to by the school district as "promotional
exercises." We are not so constrained with reference to high
schools, however. High school graduations are such an integral part
of American cultural life that we can with confidence describe
their customary features, confirmed by aspects of the record and by
the parties' representations at oral argument. In the Providence
school system, most high school graduation ceremonies are conducted
away from the school, while most middle school ceremonies are held
on school premises. Classical High School, which Deborah now
attends, has conducted its graduation ceremonies on school
premises. Agreed Statement of Facts , 37,
id., at 17. The
parties stipulate that attendance at graduation ceremonies is
voluntary. Agreed Statement of Facts' 41,
id., at 18. The
graduating students enter as a group in a processional, subject to
the direction of teachers and school officials, and sit together,
apart from their families. We assume the clergy's participation in
any high school graduation exercise would be about what it was at
Deborah's middle school ceremony. There the students stood for the
Pledge of Allegiance and remained standing during the rabbi's
prayers. Tr. of Oral Arg. 38. Even on the assumption that there was
a respectful moment of silence both before and after the prayers,
the rabbi's two presentations must not have extended much beyond a
minute each, if that. We do not know whether he remained on stage
during the whole ceremony, or whether the students received
individual diplomas on stage, or if he helped to congratulate
them.
The school board (and the United States, which supports it as
amicus curiae) argued that these short prayers and others
like them at graduation exercises are of profound meaning to many
students and parents throughout this country who consider that due
respect and acknowledgment for divine guidance and for the deepest
spiritual aspirations of
584
our people ought to be expressed at an event as important in
life as a graduation. We assume this to be so in addressing the
difficult case now before us, for the significance of the prayers
lies also at the heart of Daniel and Deborah Weisman's case.
B
Deborah's graduation was held on the premises of Nathan Bishop
Middle School on June 29, 1989. Four days before the ceremony,
Daniel Weisman, in his individual capacity as a Providence taxpayer
and as next friend of Deborah, sought a temporary restraining order
in the United States District Court for the District of Rhode
Island to prohibit school officials from including an invocation or
benediction in the graduation ceremony. The court denied the motion
for lack of adequate time to consider it. Deborah and her family
attended the graduation, where the prayers were recited. In July
1989, Daniel Weisman filed an amended complaint seeking a permanent
injunction barring petitioners, various officials of the Providence
public schools, from inviting the clergy to deliver invocations and
benedictions at future graduations. We find it unnecessary to
address Daniel Weisman's taxpayer standing, for a live and
justiciable controversy is before us. Deborah Weisman is enrolled
as a student at Classical High School in Providence and from the
record it appears likely, if not certain, that an invocation and
benediction will be conducted at her high school graduation. Agreed
Statement of Facts' 38, App. 17.
The case was submitted on stipulated facts. The District Court
held that petitioners' practice of including invocations and
benedictions in public school graduations violated the
Establishment Clause of the First Amendment, and it enjoined
petitioners from continuing the practice. 728 F. Supp. 68 (1990).
The court applied the three-part Establishment Clause test set
forth in
Lemon v.
Kurtzman, 403 U. S. 602 (1971).
Under that test as described in our past cases, to satisfy the
Establishment Clause a governmen-
585
tal practice must (1) reflect a clearly secular purpose; (2)
have a primary effect that neither advances nor inhibits religion;
and (3) avoid excessive government entanglement with religion.
Committee for Public Ed. &
Religious Liberty v.
Nyquist, 413
U. S. 756, 773 (1973). The District Court held that
petitioners' actions violated the second part of the test, and so
did not address either the first or the third. The court decided,
based on its reading of our precedents, that the effects test of
Lemon is violated whenever government action "creates an
identification of the state with a religion, or with religion in
general," 728 F. Supp., at 71, or when "the effect of the
governmental action is to endorse one religion over another, or to
endorse religion in generaL"
Id., at 72. The court
determined that the practice of including invocations and
benedictions, even so-called nonsectarian ones, in public school
graduations creates an identification of governmental power with
religious practice, endorses religion, and violates the
Establishment Clause. In so holding the court expressed the
determination not to follow
Stein v.
Plainwell Community
Schools, 822 F.2d
1406 (1987), in which the Court of Appeals for the Sixth
Circuit, relying on our decision in
Marsh v.
Chambers, 463
U. S. 783 (1983), held that benedictions and invocations at
public school graduations are not always unconstitutional. In
Marsh we upheld the constitutionality of the Nebraska State
Legislature's practice of opening each of its sessions with a
prayer offered by a chaplain paid out of public funds. The District
Court in this case disagreed with the Sixth Circuit's reasoning
because it believed that
Marsh was a narrow decision,
"limited to the unique situation of legislative prayer," and did
not have any relevance to school prayer cases. 728 F. Supp., at
74.
On appeal, the United States Court of Appeals for the First
Circuit affirmed. The majority opinion by Judge Torruella adopted
the opinion of the District Court.
908 F.2d
1090 (1990). Judge Bownes joined the majority, but wrote a
separate concurring opinion in which he decided that the
586
practices challenged here violated all three parts of the
Lemon test. Judge Bownes went on to agree with the District
Court that
Marsh had no application to school prayer cases
and that the
Stein decision was flawed. He concluded by
suggesting that under Establishment Clause rules no prayer, even
one excluding any mention of the Deity, could be offered at a
public school graduation ceremony. 908 F. 2d, at 1090-1097. Judge
Campbell dissented, on the basis of
Marsh and
Stein.
He reasoned that if the prayers delivered were nonsectarian, and if
school officials ensured that persons representing a variety of
beliefs and ethical systems were invited to present invocations and
benedictions, there was no violation of the Establishment Clause.
908 F. 2d, at 1099. We granted certiorari, 499 U. S. 918 (1991),
and now affirm.
II
These dominant facts mark and control the confines of our
decision: State officials direct the performance of a formal
religious exercise at promotional and graduation ceremonies for
secondary schools. Even for those students who object to the
religious exercise, their attendance and participation in the
state-sponsored religious activity are in a fair and real sense
obligatory, though the school district does not require attendance
as a condition for receipt of the diploma.
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. See
County of Allegheny v.
American Civil Liberties Union, Greater Pittsburgh Chapter,
492 U. S. 573
(1989);
Wallace v.
Jaffree, 472 U. S. 38 (1985);
Lynch v.
Donnelly, 465 U. S. 668 (1984). For
without reference to those principles in other contexts, the
controlling precedents as they relate to prayer and religious
exercise in primary and secondary public schools compel the holding
here that the policy of the city of Providence is an
587
unconstitutional one. We can decide the case without
reconsidering the general constitutional framework by which public
schools' efforts to accommodate religion are measured. Thus we do
not accept the invitation of petitioners and
amicus the
United States to reconsider our decision in
Lemon v.
Kurtzman, supra. The government involvement with religious
activity in this case is pervasive, to the point of creating a
state-sponsored and state-directed religious exercise in a public
school. Conducting this formal religious observance conflicts with
settled rules pertaining to prayer exercises for students, and that
suffices to determine the question before us.
The principle that government may accommodate the free exercise
of religion does not supersede the fundamentallimitations 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."
Lynch, supra, at 678;
see also
County of Allegheny, supra, at 591, quoting
Everson v.
Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947).
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.
Divisiveness, of course, can attend any state decision
respecting religions, and neither its existence nor its
potential
588
necessarily invalidates the State's attempts to accommodate
religion in all cases. The potential for divisiveness is of
particular relevance here though, because it centers around an
overt religious exercise in a secondary school environment where,
as we discuss below, see
infra, at 593-594, subtle coercive
pressures exist and where the student had no real alternative which
would have allowed her to avoid the fact or appearance of
participation.
The State's role did not end with the decision to include a
prayer and with the choice of a clergyman. Principal Lee provided
Rabbi Gutterman with a copy of the "Guidelines for Civic
Occasions," and advised him that his prayers should be
nonsectarian. Through these means the principal directed and
controlled the content of the prayers. Even if the only sanction
for ignoring the instructions were that the rabbi would not be
invited back, we think no religious representative who valued his
or her continued reputation and effectiveness in the community
would incur the State's displeasure in this regard. It is a
cornerstone principle of our Establishment Clause jurisprudence
that "it is no part of the business of government to compose
official prayers for any group of the American people to recite as
a part of a religious program carried on by government,"
Engel v.
Vitale, 370 U. S. 421, 425 (1962), and that
is what the school officials attempted to do.
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. The concern is understandable, as a
prayer which uses ideas or images identified with a particular
religion may foster a different sort of sectarian rivalry than an
invocation or benediction in terms more neutral. The school's
explanation, however, does not resolve the dilemma caused by its
participation. The question is not the good faith of the school in
attempting to make
589
the prayer acceptable to most persons, but the legitimacy of its
undertaking that enterprise at all when the object is to produce a
prayer to be used in a formal religious exercise which students,
for all practical purposes, are obliged to attend.
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.
Stein, 822 F. 2d, at 1409;
908 F.2d
1090, 1098-1099 (CA1 1990) (Campbell, J., dissenting) (case
below); see also Note, Civil Religion and the Establishment Clause,
95 Yale L. J. 1237 (1986). 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. 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-
590
terference. James Madison, the principal author of the Bill of
Rights, did not rest his opposition to a religious establishment on
the sole ground of its effect on the minority. A principal ground
for his view was: "[E]xperience witnesseth that ecclesiastical
establishments, instead of maintaining the purity and efficacy of
Religion, have had a contrary operation." Memorial and Remonstrance
Against Religious Assessments (1785), in 8 Papers of James Madison
301 (w. Rachal, R. Rutland, B. Ripel, & F. Teute eds.
1973).
These concerns have particular application in the case of school
officials, whose effort to monitor prayer will be perceived by the
students as inducing a participation they might otherwise reject.
Though the efforts of the school officials in this case to find
common ground appear to have been a good-faith attempt to recognize
the common aspects of religions and not the divisive ones, our
precedents do not permit school officials to assist in composing
prayers as an incident to a formal exercise for their students.
Engel v.
Vitale, supra, at 425. And these same
precedents caution us to measure the idea of a civic religion
against the central meaning of the Religion Clauses of the First
Amendment, which is that all creeds must be tolerated and none
favored. The suggestion that government may establish an official
or civic religion as a means of avoiding the establishment of a
religion with more specific creeds strikes us as a contradiction
that cannot be accepted.
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.
To endure the speech of false ideas or offensive content and
then to counter it is part of learning how to live in a pluralistic
society, a society which insists upon open discourse towards the
end of a tolerant citizenry. And toler-
591
ance presupposes some mutuality of obligation. It is argued 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, and that prayer at a high school graduation does nothing
more than offer a choice. By the time they are seniors, high school
students no doubt have been required to attend classes and
assemblies and to complete assignments exposing them to ideas they
find distasteful or immoral or absurd or all of these. Against this
background, students may consider it an odd measure of justice to
be subjected during the course of their educations to ideas deemed
offensive and irreligious, but to be denied a brief, formal prayer
ceremony that the school offers in return. This argument cannot
prevail, however. It overlooks a fundamental dynamic of the
Constitution.
The First Amendment protects speech and religion by quite
different mechanisms. Speech is protected by ensuring its full
expression even when the government participates, for the very
object of some of our most important speech is to persuade the
government to adopt an idea as its own.
Meese v.
Keene, 481 U.
S. 465, 480-481 (1987); see also
Keller v.
State Bar
of California, 496
U. S. 1, 10-11 (1990);
Abood v.
Detroit Bd. of
Ed., 431 U. S.
209 (1977). The method for protecting freedom of worship and
freedom of conscience in religious matters is quite the reverse. In
religious debate or expression the government is not a prime
participant, for the Framers deemed religious establishment
antithetical to the freedom of all. The Free Exercise Clause
embraces a freedom of conscience and worship that has close
parallels in the speech provisions of the First Amendment, but the
Establishment Clause is a specific prohibition on forms of state
intervention in religious affairs with no precise counterpart in
the speech provisions.
Buckley v.
Valeo, 424 U. S. 1, 92-93, and n.
127 (1976)
(per curiam). The explanation lies in the lesson
of history that was and is the inspiration for the Establishment
Clause, the lesson that in
592
the hands of government what might begin as a tolerant
expression of religious views may end in a policy to indoctrinate
and coerce. A state-created orthodoxy puts at grave risk that
freedom of belief and conscience which are the sole assurance that
religious faith is real, not imposed.
The lessons of the First Amendment are as urgent in the modern
world as in the 18th century when it was written. One timeless
lesson is that if citizens are subjected to statesponsored
religious exercises, the State disavows its own duty to guard and
respect that sphere of inviolable conscience and belief which is
the mark of a free people. To compromise that principle today would
be to deny our own tradition and forfeit our standing to urge
others to secure the protections of that tradition for
themselves.
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. See,
e. g., School
Dist. of Abington v.
Schempp, 374 U. S. 203, 307 (1963)
(Goldberg, J., concurring);
Edwards v.
Aguillard,
482 U. S. 578,
584 (1987);
Board of Ed. of Westside Community Schools
(Dist. 66) v.
Mergens, 496 U. S. 226, 261-262
(1990) (KENNEDY, J., concurring). Our decisions in
Engel v.
Vitale, 370 U.
S. 421 (1962), and
School Dist. of Abington, supra,
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. See
County of Allegheny v.
American
Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S.,
at 661 (KENNEDY, J., concurring in judgment in part and dissenting
in part). 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.
593
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.
Finding no violation under these circumstances would place
objectors in the dilemma of participating, with all that implies,
or protesting. We do not address whether that choice is acceptable
if the affected citizens are mature adults, but we think the State
may not, consistent with the Establishment Clause, place primary
and secondary school children in this position. 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. Brittain, Adolescent Choices and Parent-Peer
Cross-Pressures,
594
28 Am. Sociological Rev. 385 (June 1963); Clasen & Brown,
The Multidimensionality of Peer Pressure in Adolescence, 14 J. of
Youth and Adolescence 451 (Dec. 1985); Brown, Clasen, & Eicher,
Perceptions of Peer Pressure, Peer Conformity Dispositions, and
Self-Reported Behavior Among Adolescents, 22 Developmental
Psychology 521 (July 1986). To recognize that the choice imposed by
the State constitutes an unacceptable constraint only acknowledges
that the government may no more use social pressure to enforce
orthodoxy than it may use more direct means.
The injury caused by the government's action, and the reason why
Daniel and Deborah Weisman object to it, is that the State, in a
school setting, in effect required participation in a religious
exercise. It is, we concede, a brief exercise during which the
individual can concentrate on joining its message, meditate on her
own religion, or let her mind wander. But the embarrassment and the
intrusion of the religious exercise cannot be refuted by arguing
that these prayers, and similar ones to be said in the future, are
of a
de minimis character. To do so would be an affront to
the rabbi who offered them and to all those for whom the prayers
were an essential and profound recognition of divine authority. And
for the same reason, we think that the intrusion is greater than
the two minutes or so of time consumed for prayers like these.
Assuming, as we must, that the prayers were offensive to the
student and the parent who now object, the intrusion was both real
and, in the context of a secondary school, a violation of the
objectors' rights. 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. At best it narrows their number, at
worst increases their sense of isolation and affront. See
supra, at 593.
There was a stipulation in the District Court that attendance at
graduation and promotional ceremonies is voluntary. Agreed
Statement of Facts , 41, App. 18. Petitioners and
595
the United States, as
amicus, made this a center point of
the case, arguing that the option of not attending the graduation
excuses any inducement or coercion in the ceremony itself. The
argument lacks all persuasion. Law reaches past formalism. And to
say a teenage student has a real choice not to attend her high
school graduation is formalistic in the extreme. True, Deborah
could elect not to attend commencement without renouncing her
diploma; but we shall not allow the case to turn on this point.
Everyone knows that in our society and in our culture high school
graduation is one of life's most significant occasions. A school
rule which excuses attendance is beside the point. Attendance may
not be required by official decree, yet it is apparent that a
student is not free to absent herself from the graduation exercise
in any real sense of the term "voluntary," for absence would
require forfeiture of those intangible benefits which have
motivated the student through youth and all her high school years.
Graduation is a time for family and those closest to the student to
celebrate success and express mutual wishes of gratitude and
respect, all to the end of impressing upon the young person the
role that it is his or her right and duty to assume in the
community and all of its diverse parts.
The importance of the event is the point the school district and
the United States rely upon to argue that a formal prayer ought to
be permitted, but it becomes one of the principal reasons why their
argument must fail. Their contention, one of considerable force
were it not for the constitutional constraints applied to state
action, is that the prayers are an essential part of these
ceremonies because for many persons an occasion of this
significance lacks meaning if there is no recognition, however
brief, that human achievements cannot be understood apart from
their spiritual essence. We think the Government's position that
this interest suffices to force students to choose between
compliance or forfeiture demonstrates fundamental inconsistency in
its argumentation. It fails to acknowledge that what for many
of
596
Deborah's classmates and their parents was a spiritual
imperative was for Daniel and Deborah Weisman religious conformance
compelled by the State. While in some societies the wishes of the
majority might prevail, the Establishment Clause of the First
Amendment is addressed to this contingency and rejects the balance
urged upon us. The Constitution forbids the State to exact
religious conformity from a student as the price of attending her
own high school graduation. This is the calculus the Constitution
commands.
The Government's argument gives insufficient recognition to the
real conflict of conscience faced by the young student. 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 turns conventional First Amendment analysis on its
head. It is a tenet of the First Amendment that the State cannot
require one of its citizens to forfeit his or her rights and
benefits as the price of resisting conformance to state-sponsored
religious practice. 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. See
supra, at 593-594. Just as in
Engel v.
Vitale, 370 U. S., at 430, and
School
Dist. of Abington v.
Schempp, 374 U. S., at 224-225,
where we found that provisions within the challenged legislation
permitting a student to be voluntarily excused from attendance or
participation in the daily prayers did not shield those practices
from invalidation, the fact that attendance at the graduation
ceremonies is voluntary in a legal sense does not save the
religious exercise.
Inherent differences between the public school system and a
session of a state legislature distinguish this case from
Marsh v.
Chambers, 463 U. S. 783 (1983). The
considera-
597
tions we have raised in objection to the invocation and
benediction are in many respects similar to the arguments we
considered in
Marsh. But there are also obvious differences.
The atmosphere at the opening of a session of a state legislature
where adults are free to enter and leave with little comment and
for any number of reasons cannot compare with the constraining
potential of the one school event most important for the student to
attend. The influence and force of a formal exercise in a school
graduation are far greater than the prayer exercise we condoned in
Marsh. The
Marsh majority in fact gave specific
recognition to this distinction and placed particular reliance on
it in upholding the prayers at issue there. 463 U. S., at 792.
Today's case is different. At a high school graduation, teachers
and principals must and do retain a high degree of control over the
precise contents of the program, the speeches, the timing, the
movements, the dress, and the decorum of the students.
Bethel
School Dist. No. 403 v.
Fraser, 478 U. S. 675 (1986). In
this atmosphere the state-imposed character of an invocation and
benediction by clergy selected by the school combine to make the
prayer a state-sanctioned religious exercise in which the student
was left with no alternative but to submit. This is different from
Marsh and suffices to make the religious exercise a First
Amendment violation. Our Establishment Clause jurisprudence remains
a delicate and fact-sensitive one, and we cannot accept the
parallel relied upon by petitioners and the United States between
the facts of
Marsh and the case now before us. Our decisions
in
Engel v.
Vitale, supra, and
School Dist. of
Abington v.
Schempp, supra, require us to distinguish
the public school context.
We do not hold that every state action implicating religion is
invalid if one or a few citizens find it offensive. People may take
offense at all manner of religious as well as nonreligious
messages, but offense alone does not in every case show a
violation. We know too that sometimes to endure
598
social isolation or even anger may be the price of conscience or
nonconformity. But, by any reading of our cases, the conformity
required of the student in this case was too high an exaction to
withstand the test of the Establishment Clause. The prayer
exercises in this case are especially improper because the State
has in every practical sense compelled attendance and participation
in an explicit religious exercise at an event of singular
importance to every student, one the objecting student had no real
alternative to avoid.
Our jurisprudence in this area is of necessity one of
linedrawing, of determining at what point a dissenter's rights of
religious freedom are infringed by the State.
"The First Amendment does not prohibit practices which by any
realistic measure create none of the dangers which it is designed
to prevent and which do not so directly or substantially involve
the state in religious exercises or in the favoring of religion as
to have meaningful and practical impact. It is of course true that
great consequences can grow from small beginnings, but the measure
of constitutional adjudication is the ability and willingness to
distinguish between real threat and mere shadow." School Dist.
of Abington v. Schempp, supra, at 308 (Goldberg, J.,
concurring).
Our society would be less than true to its heritage if it lacked
abiding concern for the values of its young people, and we
acknowledge the profound belief of adherents to many faiths that
there must be a place in the student's life for precepts of a
morality higher even than the law we today enforce. We express no
hostility to those aspirations, nor would our oath permit us to do
so. A relentless and allpervasive attempt to exclude religion from
every aspect of public life could itself become inconsistent with
the Constitution. See
School Dist. of Abington, supra, at
306 (Goldberg, J., concurring). We recognize that, at graduation
time and throughout the course of the educational process, there
will
599
be instances when religious values, religious practices, and
religious persons will have some interaction with the public
schools and their students. See
Board of Ed. of Westside
Community Schools (Dist. 66) v.
Mergens, 496 U. S. 226 (1990). But
these matters, often questions of accommodation of religion, are
not before us. The sole question presented is whether a religious
exercise may be conducted at a graduation ceremony in circumstances
where, as we have found, young graduates who object are induced to
conform. No holding by this Court suggests that a school can
persuade or compel a student to participate in a religious
exercise. That is being done here, and it is forbidden by the
Establishment Clause of the First Amendment.
For the reasons we have stated, the judgment of the Court of
Appeals is
Affirmed.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS and JUSTICE O'CONNOR
join, concurring.
Nearly half a century of review and refinement of Establishment
Clause jurisprudence has distilled one clear understanding:
Government may neither promote nor affiliate itself with any
religious doctrine or organization, nor may it obtrude itself in
the internal affairs of any religious institution. The application
of these principles to the present case mandates the decision
reached today by the Court.
I
This Court first reviewed a challenge to state law under the
Establishment Clause in
Everson v.
Board of Ed. of
Ewing, 330 U. S.
1 (1947).1 Relying on the history of the
1 A few earlier cases involving federal laws touched on
interpretation of the Establishment Clause. In
Reynolds v.
United States, 98 U. S. 145 (1879), and
Davis v.
Beason, 133 U. S. 333 (1890), the
Court considered the Clause in the context of federal laws
prohibiting bigamy. The Court in
Reynolds accepted Thomas
Jefferson's letter to the Danbury Baptist Asso-
600
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. Neither a State nor the Federal
Government, openly or secretly, can participate in the affairs of
any religious organization and vice versa.2 "In the words of
Jefferson, the clause
ciation "almost as an authoritative declaration of the scope and
effect" of the First Amendment. 98 U. S., at 164. In that letter
Jefferson penned his famous lines that the Establishment Clause
built "a wall of separation between church and State."
Ibid.
Davis considered that "[t]he first amendment to the
Constitution ... was intended ... to prohibit legislation for the
support of any religious tenets, or the modes of worship of any
sect." 133 U. S., at 342. In another case,
Bradfield v.
Roberts, 175
U. S. 291 (1899), the Court held that it did not violate the
Establishment Clause for Congress to construct a hospital building
for caring for poor patients, although the hospital was managed by
sisters of the Roman Catholic Church. The Court reasoned: "That the
influence of any particular church may be powerful over the members
of a non-sectarian and secular corporation, incorporated for a
certain defined purpose and with clearly stated powers, is surely
not sufficient to convert such a corporation into a religious or
sectarian body."
Id., at 298. Finally, in 1908 the Court
held that "the spirit of the Constitution" did not prohibit the
Indians from using their money, held by the United States
Government, for religious education. See
Quick Bear v.
Leupp, 210 U.
S. 50, 81.
2 The Court articulated six examples of paradigmatic practices
that the Establishment Clause prohibits: "The 'establishment of
religion' clause of the First Amendment means at least this:
Neither a state nor the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid all religions, or
prefer one religion over another. Neither can force nor influence a
person to go to or to remain away from church against his will or
force him to profess a belief or disbelief in any religion. No
person can be punished for entertaining or professing religious
beliefs or disbeliefs, for church attendance or non-attendance. No
tax in any amount, large or small, can be levied to support any
religious activities or institutions, whatever they may be called,
or whatever form they may adopt to teach or practice religion.
Neither a state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious
601
against establishment of religion by law was intended to erect
'a wall of separation between church and State.'"
Everson,
330 U. S., at 16 (quoting
Reynolds v.
United States,
98 U. S. 145, 164
(1879)). The dissenters agreed: "The Amendment's purpose ... was to
create a complete and permanent separation of the spheres of
religious activity and civil authority by comprehensively
forbidding every form of public aid or support for religion." 330
U. S., at 31-32 (Rutledge, J., dissenting, joined by Frankfurter,
Jackson, and Burton, JJ.).
In
Engel v.
Vitale, 370 U. S. 421 (1962), the
Court considered for the first time the constitutionality of prayer
in a public school. 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.'"
Id., at 422.
Justice Black, writing for the Court, again made clear that the
First Amendment forbids the use of the power or prestige of the
government to control, support, or influence the religious beliefs
and practices of the American people. Although the prayer was
"denominationally neutral" and "its observance on the part of the
students [was] voluntary,"
id., at 430, the Court found that
it violated this essential precept of the Establishment Clause.
A year later, the Court again invalidated governmentsponsored
prayer in public schools in
School Dist. of Abington v.
Schempp, 374
U. S. 203 (1963). In
Schempp, the school day for
Baltimore, Maryland, and Abington Township, Pennsylvania, students
began with a reading from the Bible, or a recitation of the Lord's
Prayer, or both. After a thorough review of the Court's prior
Establishment Clause cases, the Court concluded:
organizations or groups and vice versa." Everson v. Board of Ed.
of Ewing, 330 U. S., at 15.
602
"[T]he Establishment Clause has been directly considered by this
Court eight times in the past score of years and, with only one
Justice dissenting on the point, it has consistently held that the
clause withdrew all legislative power respecting religious belief
or the expression thereof. The test may be stated as follows: what
are the purpose and the primary effect of the enactment? If either
is the advancement or inhibition of religion, then the enactment
exceeds the scope of legislative power as circumscribed by the
Constitution."
Id., at 222.
Because the schools' opening exercises were governmentsponsored
religious ceremonies, the Court found that the primary effect was
the advancement of religion and held, therefore, that the activity
violated the Establishment Clause.
Id., at 223-224.
Five years later, the next time the Court considered whether
religious activity in public schools violated the Establishment
Clause, it reiterated the principle that government "may not aid,
foster, or promote one religion or religious theory against another
or even against the militant opposite."
Epperson v.
Arkansas, 393
U. S. 97, 104 (1968). "'If [the purpose or primary effect] is
the advancement or inhibition of religion then the enactment
exceeds the scope of legislative power as circumscribed by the
Constitution.'"
Id., at 107 (quoting
Schempp, 374 U.
S., at 222). Finding that the Arkansas law aided religion by
preventing the teaching of evolution, the Court invalidated it.
In 1971, Chief Justice Burger reviewed the Court's past
decisions and found: "Three ... tests may be gleaned from our
cases."
Lemon v.
Kurtzman, 403 U. S. 602, 612. 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
603
religion."
Id., at 612-613 (internal quotation marks and
citations omitted).3 After
Lemon, the Court continued to
rely on these basic principles in resolving Establishment Clause
disputes.4
Application of these principles to the facts of this case is
straightforward. There can be "no doubt" that the "invocation of
God's blessings" delivered at Nathan Bishop Middle School "is a
religious activity."
Engel, 370 U. S., at 424. In the words
of
Engel, the rabbi's prayer "is a solemn avowal of divine
faith and supplication for the blessings of the Almighty. The
nature of such a prayer has always been religious."
Id., at
424-425. The question then is whether the government has "plac[ed]
its official stamp of approval" on the prayer.
Id., at 429.
As the Court ably demonstrates, when the government "compose[s]
official prayers,"
id., at 425, 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 pres-
3 The final prong, excessive entanglement, was a focus of
Walz v.
Tax Comm'n of New York City, 397 U. S. 664, 674
(1970), but harkens back to the final example in
Everson:
"Neither a state nor the Federal Government can, openly or
secretly, participate in the affairs of any religious organizations
or groups and
vice versa." Everson, 330 U. S., at 16. The
discussion in
Everson reflected the Madisonian concern that
secular and religious authorities must not interfere with each
other's respective spheres of choice and influence. See generally
The Complete Madison 298-312 (S. Padover ed. 1953).
4 Since 1971, the Court has decided 31 Establishment Clause
cases. In only one instance, the decision of
Marsh v.
Chambers, 463
U. S. 783 (1983), has the Court not rested its decision on the
basic principles described in
Lemon. For example, in the
most recent Establishment Clause case,
Board of Ed. of Westside
Community Schools (Dist. 66) v.
Mergens, 496 U. S. 226
(1990), the Court applied the three-part
Lemon analysis to
the Equal Access Act, which made it unlawful for public secondary
schools to deny equal access to any student wishing to hold
religious meetings.
Id., at 248-253 (plurality opinion);
id., at 262 (Marshall, J., concurring in judgment). In no
case involving religious activities in public schools has the Court
failed to apply vigorously the
Lemon factors.
604
sures students to attend and participate in the prayer, there
can be no doubt that the government is advancing and promoting
religion.5 As our prior decisions teach us, it is this that the
Constitution prohibits.
II
I join the Court's opinion today because I find nothing in it
inconsistent with the essential precepts of the Establishment
Clause developed in our precedents. The Court holds that the
graduation prayer is unconstitutional because the State "in effect
required participation in a religious exercise."
Ante, at
594. Although our precedents make clear that proof of government
coercion is not necessary to prove an Establishment Clause
violation, it is sufficient. Government pressure to participate in
a religious activity is an obvious indication that the government
is endorsing or promoting religion.
But it is not enough that the government restrain from
compelling religious practices: It must not engage in them either.
See
Schempp, 374 U. S., at 305 (Goldberg, J., concurring).
The Court repeatedly has recognized that a violation of the
Establishment Clause is not predicated on coercion. See,
e. g.,
id., at 223;
id., at 229 (Douglas, J., concurring);
Wallace v.
Jaffree, 472 U. S. 38, 72 (1985)
(O'CONNOR, J., concurring in judgment) ("The decisions [in
Engel and
Schempp] acknowledged the coercion implicit
under the statutory schemes, but they expressly turned only on the
fact that the government was sponsoring a manifestly religious
exercise" (citation omitted));
Committee for Public Ed.
&
Religious Liberty v.
Nyquist, 413 U. S. 756, 786 (1973)
("[P]roof of coercion ... [is] not a necessary element of any claim
under the Establishment Clause"). The Establishment Clause
proscribes public schools from "conveying or attempting to con-
5 In this case, the religious message it promotes is
specifically JudeoChristian. The phrase in the benediction: "We
must each strive to fulfill what you require of us all, to do
justly, to love mercy, to walk humbly" obviously was taken from the
Book of the Prophet Micah, ch. 6, v. 8.
605
vey a message that religion or a particular religious belief is
favored or
preferred," County of Allegheny v.
American Civil Liberties Union, Greater Pittsburgh Chapter,
492 U. S. 573,
593 (1989) (internal quotation marks omitted; emphasis in
original), even if the schools do not actually "impos[e] pressure
upon a student to participate in a religious activity."6
Board
of Ed. of Westside Community Schools (Dist. 66) v.
Mergens, 496
U. S. 226, 261 (1990) (KENNEDY, J., concurring in part and
concurring in judgment).
The scope of the Establishment Clause's prohibitions developed
in our case law derives from the Clause's purposes. The First
Amendment encompasses two distinct guarantees-the government shall
make no law respecting an establishment of religion or prohibiting
the free exercise thereof-both with the common purpose of securing
religious liberty.7 Through vigorous enforcement of both Clauses,
we "promote and assure the fullest possible scope of religious
liberty and tolerance for all and ... nurture the conditions which
secure the best hope of attainment of that end."
Schempp,
374 U. S., at 305 (Goldberg, J., concurring).
There is no doubt that attempts to aid religion through
government coercion jeopardize freedom of conscience. Even subtle
pressure diminishes the right of each individual to choose
voluntarily what to believe. Representative Carroll explained
during congressional debate over the Estab-
6 As a practical matter, of course, anytime the government
endorses a religious belief there will almost always be some
pressure to conform. "When the power, prestige and financial
support of government is placed behind a particular religious
belief, the indirect coercive pressure upon religious minorities to
conform to the prevailing officially approved religion is plain."
Engel v.
Vitale, 370 U. S. 421, 431
(1962).
7 See,
e. g., Everson, 330 U. S., at 40 (Rutledge, J.,
dissenting) (" 'Establishment' and 'free exercise' were correlative
and coextensive ideas, representing only different facets of the
single great and fundamental freedom");
School Dist. of
Abington v.
Schempp, 374 U. S. 203, 227 (1963)
(Douglas, J., concurring);
id., at 305 (Goldberg, J.,
concurring);
Wallace v.
Jaffree, 472 U. S. 38, 50
(1985).
606
lishment Clause: "[T]he rights of conscience are, in their
nature, of peculiar delicacy, and will little bear the gentlest
touch of governmental hand." 1 Annals of Congo 757 (1789).
Our decisions have gone beyond prohibiting coercion, however,
because the Court has recognized that "the fullest possible scope
of religious liberty,"
Schempp, 374 U. S., at 305 (Goldberg,
J., concurring), entails more than freedom from coercion. The
Establishment Clause protects religious liberty on a grand scale;
it is a social compact that guarantees for generations a democracy
and a strong religious community-both essential to safeguarding
religious liberty. "Our fathers seem to have been perfectly sincere
in their belief that the members of the Church would be more
patriotic, and the citizens of the State more religious, by keeping
their respective functions entirely separate." Religious Liberty,
in Essays and Speeches of Jeremiah S. Black 53 (C. Black ed. 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. When the
government puts its
imprimatur on a particular religion, it
conveys a message of exclusion to all those who do not adhere to
the favored beliefs.9 A government cannot
8 See also
Engel, 370 U. S., at 431 (The Clause's "first
and most immediate purpose rested on the belief that a union of
government and religion tends to destroy government and to degrade
religion");
Illinois ex rel. McCollum v.
Board of Ed. of
School Dist. No. 71,
Champaign Cty., 333 U. S. 203, 212
(1948) ("[T]he First Amendment rests upon the premise that both
religion and government can best work to achieve their lofty aims
if each is left free from the other within its respective
sphere").
9 "[T]he Establishment Clause is infringed when the government
makes adherence to religion relevant to a person's standing in the
political community. Direct government action endorsing religion or
a particular religious practice is invalid under this approach
because it sends a message to nonadherents that they are outsiders,
not full members of the political community, and an accompanying
message to adherents that they are insiders, favored members of the
political community."
Wallace v.
Jaffree, 472 U. S.,
at 69 (O'CONNOR, J., concurring in judgment) (internal quotation
marks omitted).
607
be premised on the belief that all persons are created equal
when it asserts that God prefers some. Only "[a]nguish, hardship
and bitter strife" result "when zealous religious groups struggl[e]
with one another to obtain the Government's stamp of approval."
Engel, 370 U. S., at 429; see also
Lemon, 403 U. S.,
at 622-623;
Aguilar v.
Felton, 473 U. S. 402, 416 (1985)
(Powell, J., concurring).l0 Such a struggle can "strain a political
system to the breaking point."
Walz v.
Tax Comm'n of New
York City, 397 U.
S. 664, 694 (1970) (opinion of Harlan, J.).
When the government arrogates to itself a role in religious
affairs, it abandons its obligation as guarantor of democracy.
Democracy requires the nourishment of dialog and dissent, while
religious faith puts its trust in an ultimate divine authority
above all human deliberation. When the government appropriates
religious truth, it "transforms rational debate into theological
decree." Nuechterlein, Note, The Free Exercise Boundaries of
Permissible Accommodation Under the Establishment Clause, 99 Yale
L. J. 1127, 1131 (1990). Those who disagree no longer are
questioning the policy judgment of the elected but the rules of a
higher authority who is beyond reproach.
10 Sigmund Freud expressed it this way: "a religion, even if it
calls itself the religion of love, must be hard and unloving to
those who do not belong to it." S. Freud, Group Psychology and the
Analysis of the Ego 51 (1922). 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. Distant as it may be,
in its present form, from the Inquisition it differs from it only
in degree. The one is the first step, the other the last in the
career of intolerance." The Complete Madison, at 303. Religion has
not lost its power to engender divisiveness. "Of all the issues the
ACLU takes on-reproductive rights, discrimination, jail and prison
conditions, abuse of kids in the public schools, police brutality,
to name a few-by far the most volatile issue is that of school
prayer. Aside from our efforts to abolish the death penalty, it is
the only issue that elicits death threats." Parish, Graduation
Prayer Violates the Bill of Rights, 4 Utah Bar J. 19 (June/July
1991).
608
Madison warned that government officials who would use religious
authority to pursue secular ends "exceed the commission from which
they derive their authority and are Tyrants. The People who submit
to it are governed by laws made neither by themselves, nor by an
authority derived from them, and are slaves." Memorial and
Remonstrance against Religious Assessments (1785), in The Complete
Madison 300 (S. Pad over ed. 1953). Democratic government will not
last long when proclamation replaces persuasion as the medium of
political exchange.
Likewise, we have recognized that "[r]eligion flourishes in
greater purity, without than with the aid of Gov[ernment]." 11
Id., at 309. To "make room for as wide a variety of beliefs
and creeds as the spiritual needs of man deem necessary,"
Zorach v.
Clauson, 343 U. S. 306, 313
(1952), the government must not align itself with anyone of them.
When the government favors a particular religion or sect, the
disadvantage to all others is obvious, but even the favored
religion may fear being "taint[ed] ... with a corrosive
secularism."
School Dist. of Grand Rapids v.
Ball,
473 U. S. 373,
385 (1985). 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
11 The view that the Establishment Clause was primarily a
vehicle for protecting churches was expounded initially by Roger
Williams. "[W]ordly corruptions ... might consume the churches if
sturdy fences against the wilderness were not maintained." M. Howe,
The Garden and the Wilderness 6 (1965).
12 "[B]ut when a religion contracts an alliance of this nature,
I do not hesitate to affirm that it commits the same error as a man
who should sacrifice his future to his present welfare; and in
obtaining a power to which it has no claim, it risks that authority
which is rightfully its own." 1 A. de Tocqueville, Democracy in
America 315 (H. Reeve transl. 1900).
609
zeal of its adherents and the appeal of its dogma."
Zorach, 343 U. S., at 313.
It is these understandings and fears that underlie our
Establishment Clause jurisprudence. We have believed that religious
freedom cannot exist in the absence of a free democratic
government, and that such a government cannot endure when there is
fusion between religion and the political regime. We have believed
that religious freedom cannot thrive in the absence of a vibrant
religious community and that such a community cannot prosper when
it is bound to the secular. And we have believed that these were
the animating principles behind the adoption of the Establishment
Clause. To that end, our cases have prohibited government
endorsement of religion, its sponsorship, and active involvement in
religion, whether or not citizens were coerced to conform.
I remain convinced that our jurisprudence is not misguided, and
that it requires the decision reached by the Court today.
Accordingly, I join the Court in affirming the judgment of the
Court of Appeals.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE O'CONNOR
join, concurring.
I join the whole of the Court's opinion, and fully agree that
prayers at public school graduation ceremonies indirectly coerce
religious observance. I write separately nonetheless on two issues
of Establishment Clause analysis that underlie my independent
resolution of this case: whether the Clause applies to governmental
practices that do not favor one religion or denomination over
others, and whether state coercion of religious conformity, over
and above state endorsement of religious exercise or belief, is a
necessary element of an Establishment Clause violation.
I
Forty-five years ago, this Court announced a basic principle of
constitutional law from which it has not strayed: the
610
Establishment Clause forbids not only state practices that "aid
one religion ... or prefer one religion over another," but also
those that "aid all religions."
Everson v.
Board of Ed.
of Ewing, 330 U. S.
1, 15 (1947). Today we reaffirm that principle, holding that
the Establishment Clause forbids state-sponsored prayers in public
school settings no matter how nondenominational the prayers may be.
In barring the State from sponsoring generically theistic prayers
where it could not sponsor sectarian ones, we hold true to a line
of precedent from which there is no adequate historical case to
depart.
A
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."
Id., at 430. 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. We said that "when the underlying principle has
been examined in the crucible of litigation, the Court has
unambiguously concluded that the individual freedom of conscience
protected by the First Amendment embraces the right to select any
religious faith or none at all."
Id., at 52-53. This
conclusion, we held,
"derives support not only from the interest in respecting the
individual's freedom of conscience, but also from the conviction
that religious beliefs worthy of respect are the product of free
and voluntary choice by the faithful,
1 Cf.
Larson v.
Valente, 456 U. S. 228 (1982)
(subjecting discrimination against certain religious organizations
to test of strict scrutiny).
611
and from recognition of the fact that the political interest in
forestalling intolerance extends beyond intolerance among Christian
sects-or even intolerance among 'religions' -to encompass
intolerance of the disbeliever and the uncertain." Id., at
53-54 (footnotes omitted).
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."
Id., at 17
(plurality opinion); see
id., at 28 (BLACKMUN, J.,
concurring in judgment) ("A statutory preference for the
dissemination of religious ideas offends our most basic
understanding of what the Establishment Clause is all about and
hence is constitutionally intolerable"). And in
Torcaso v.
Watkins, 367
U. S. 488 (1961), we struck down a provision of the Maryland
Constitution requiring public officials to declare a "'belief in
the existence of God,'"
id., at 489, reasoning that, under
the Religion Clauses of the First Amendment, "neither a State nor
the Federal Government ... can constitutionally pass laws or impose
requirements which aid all religions as against non-believers ...
,"
id., at 495. See also
Epperson v.
Arkansas,
393 U. S. 97, 104
(1968) ("The First Amendment mandates governmental neutrality
between religion and religion, and between religion and
nonreligion");
School Dist. of Abington v.
Schempp,
374 U. S. 203,
216 (1963) ("this Court has rejected unequivocally the contention
that the Establishment Clause forbids only governmental preference
of one religion over another");
id., at 319320 (Stewart, J.,
dissenting) (the Clause applies "to each of us, be he Jew or
Agnostic, Christian or Atheist, Buddhist or Freethinker").
Such is the settled law. Here, as elsewhere, we should stick to
it absent some compelling reason to discard it. See
612
Arizona v.
Rumsey, 467 U. S. 203, 212
(1984);
Payne v.
Tennessee, 501 U. S. 808, 842 (1991)
(SOUTER, J., concurring).
B
Some have challenged this precedent by reading the Establishment
Clause to permit "nonpreferential" state promotion of religion. The
challengers argue that, as originally understood by the Framers,
"[t]he Establishment Clause did not require government neutrality
between religion and irreligion nor did it prohibit the Federal
Government from providing nondiscriminatory aid to religion."
Wallace, supra, at 106 (REHNQUIST, J., dissenting); see also
R. Cord, Separation of Church and State: Historical Fact and
Current Fiction (1988). While a case has been made for this
position, it is not so convincing as to warrant reconsideration of
our settled law; indeed, I find in the history of the Clause's
textual development a more powerful argument supporting the Court's
jurisprudence following
Everson.
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." 1
Annals of Congo 434 (1789). Madison's language did not last long.
It was sent to a Select Committee of the House, which, without
explanation, changed it to read that "no religion shall be
established by law, nor shall the equal rights of conscience be
infringed."
Id., at 729. Thence the proposal went to the
Committee of the Whole, which was in turn dissatisfied with the
Select Committee's language and adopted an alternative proposed by
Samuel Livermore of New Hampshire: "Congress shall make no laws
touching religion, or infringing the rights of conscience." See
id., at 731. Livermore's proposal would have forbidden laws
having anything to do with religion and was thus not
613
only far broader than Madison's version, but broader even than
the scope of the Establishment Clause as we now understand it. See,
e. g., Corporation of Presiding Bishop of Church of Jesus Christ
of Latter-day Saints v.
Amos, 483 U. S. 327 (1987)
(upholding legislative exemption of religious groups from certain
obligations under civil rights laws).
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."
1 Documentary History of the First Federal Congress of the United
States of America 136 (Senate Journal) (L. de Pauw ed. 1972); see 1
Annals of Congo 765 (1789). Perhaps, on further reflection, the
Representatives had thought Livermore's proposal too expansive, or
perhaps, as one historian has suggested, they had simply worried
that his language would not "satisfy the demands of those who
wanted something said specifically against establishments of
religion." L. Levy, The Establishment Clause 81 (1986) (hereinafter
Levy). We do not know; what we do know is that the House rejected
the Select Committee's version, which arguably ensured only that
"no religion" enjoyed an official preference over others, and
deliberately chose instead a prohibition extending to laws
establishing "religion" in general.
The sequence of the Senate's treatment of this House proposal,
and the House's response to the Senate, confirm that the Framers
meant the Establishment Clause's prohibition to encompass
nonpreferential aid to religion. In September 1789, the Senate
considered a number of provisions that would have permitted such
aid, and ultimately it adopted one of them. First, it briefly
entertained this language: "Congress shall make no law establishing
One Religious Sect or Society in preference to others, nor shall
the rights of conscience be infringed." See 1 Documentary History,
at 151
614
(Senate Journal);
id., at 136. After rejecting two minor
amendments to that proposal, see
id., at 151, the Senate
dropped it altogether and chose a provision identical to the
House's proposal, but without the clause protecting the "rights of
conscience,"
ibid. With no record of the Senate debates, we
cannot know what prompted these changes, but the record does tell
us that, six days later, the Senate went half circle and adopted
its narrowest language yet: "Congress shall make no law
establishing articles of faith or a mode of worship, or prohibiting
the free exercise of religion."
Id., at 166. The Senate sent
this proposal to the House along with its versions of the other
constitutional amendments proposed.
Though it accepted much of the Senate's work on the Bill of
Rights, the House rejected the Senate's version of the
Establishment Clause and called for a joint conference committee,
to which the Senate agreed. The House conferees ultimately won out,
persuading the Senate to accept this as the final text of the
Religion Clauses: "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof." 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." 2 The Framers re-
2 Some commentators have suggested that by targeting laws
respecting "an" establishment of religion, the Framers adopted the
very nonpreferentialist position whose much clearer articulation
they repeatedly rejected. See,
e. g., R. Cord,
Separation of Church and State 11-12 (1988). Yet the indefinite
article before the word "establishment" is better seen as evidence
that the Clause forbids any kind of establishment, including a
nonpreferential one. 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." See Laycock, "Nonpreferential" Aid to Religion: A False
Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 884-885
(1986) (hereinafter Laycock, "Nonpreferential" Aid).
615
peatedly considered and deliberately rejected such narrow
language and instead extended their prohibition to state support
for "religion" in general.
Implicit in their choice is the distinction between preferential
and nonpreferential establishments, which the weight of evidence
suggests the Framers appreciated. See,
e. g.,
Laycock, "Nonpreferential" Aid 902-906; Levy 91-119. But cf. T.
Curry, The First Freedoms 208-222 (1986). 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. See
generally Levy 1-62. The Virginia statute for religious freedom,
written by Jefferson and sponsored by Madison, captured the
separationist response to such measures. 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. Act for Establishing Religious Freedom (1785), in 5 The
Founders' Constitution 84, 85 (P. Kurland & R. Lerner eds.
1987). Forcing a citizen to support even his own church would,
among other things, deny "the ministry those temporary rewards,
which proceeding from an approbation of their personal conduct, are
an additional incitement to earnest and unremitting labours for the
instruction of mankind."
Id., at 84. In general, Madison
later added, "religion & Govt. will both exist in greater
purity, the less they are mixed together." Letter from J. Madison
to E. Livingston (July 10, 1822), in 5 The Founders' Constitution,
at 105, 106.
What we thus know of the Framers' experience underscores the
observation of one prominent commentator, that confining the
Establishment Clause to a prohibition on preferential aid "requires
a premise that the Framers were extraordinarily bad drafters-that
they believed one thing but adopted language that said something
substantially different, and that they did so after repeatedly
attending to the
616
choice of language." Laycock, "Nonpreferential" Aid 882883; see
also
County of Allegheny v.
American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U. S. 573, 647648
(1989) (opinion of STEVENS, J.). We must presume, since there is no
conclusive evidence to the contrary, that the Framers embraced the
significance of their textual judgment.3 Thus, on balance, history
neither contradicts nor warrants reconsideration of the settled
principle that the Establishment Clause forbids support for
religion in general no less than support for one religion or
some.
C
While these considerations are, for me, sufficient to reject the
nonpreferentialist position, one further concern animates my
judgment. 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. Simply by requiring the enquiry,
nonpreferentialists invite the courts to engage in comparative
theology. I can hardly imagine a subject less amenable to the
compe-
3 In his dissent in
Wallace v.
Jaffree, 472 U. S. 38 (1985), THE
CHIEF JUSTICE rested his nonpreferentialist interpretation partly
on the postratification actions of the early National Government.
Aside from the willingness of some (but not all) early Presidents
to issue ceremonial religious proclamations, which were at worst
trivial breaches of the Establishment Clause, see
infra, at
630-631, he cited such seemingly preferential aid as a treaty
provision, signed by Jefferson, authorizing federal subsidization
of a Roman Catholic priest and church for the Kaskaskia Indians.
472 U. S., at 103. But this proves too much, for if the
Establishment Clause permits a special appropriation of tax money
for the religious activities of a particular sect, it forbids
virtually nothing. See Laycock, "Nonpreferential" Aid 915. Although
evidence of historical practice can indeed furnish valuable aid in
the interpretation of contemporary language, acts like the one in
question prove only that public officials, no matter when they
serve, can turn a blind eye to constitutional principle. See
infra, at 626.
617
tence of the federal judiciary, or more deliberately to be
avoided where possible.
This case is nicely in point. Since the nonpreferentiality of a
prayer must be judged by its text, JUSTICE BLACKMUN pertinently
observes,
ante, at 604, n. 5, that Rabbi Gutterman drew his
exhortation" '[t]o do justly, to love mercy, to walk humbly'"
straight from the King James version of Micah, ch. 6, v. 8. At some
undefinable point, the similarities between a state-sponsored
prayer and the sacred text of a specific religion would so closely
identify the former with the latter that even a nonpreferentialist
would have to concede a breach of the Establishment Clause. And
even if Micah's thought is sufficiently generic for most believers,
it still embodies a straightforwardly theistic premise, and so does
the rabbi's prayer. Many Americans who consider themselves
religious are not theistic; some, like several of the Framers, are
deists who would question Rabbi Gutterman's plea for divine
advancement of the country's political and moral good. Thus, a
nonpreferentialist who would condemn subjecting public school
graduates to, say, the Anglican liturgy would still need to explain
why the government's preference for theistic over nontheistic
religion is constitutional.
Nor does it solve the problem to say that the State should
promote a "diversity" of religious views; that position would
necessarily compel the government and, inevitably, 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. In fact, the prospect would be even worse than
that. As Madison observed in criticizing religious Presidential
proclamations, the practice of sponsoring religious messages tends,
over time, "to narrow the recommendation to the standard of the
predominant sect." Madison's "Detached Memoranda," 3 Wm. & Mary
Q. 534, 561 (E. Fleet ed. 1946) (hereinafter Madison's "Detached
Memoranda"). We have not changed much since the days of Madison,
and the judiciary should not
618
willingly enter the political arena to battle the centripetal
force leading from religious pluralism to official preference for
the faith with the most votes.
II
Petitioners rest most of their argument on a theory that,
whether or not the Establishment Clause permits extensive
nonsectarian support for religion, it does not forbid the state to
sponsor affirmations of religious belief that coerce neither
support for religion nor participation in religious observance. I
appreciate the force of some of the arguments supporting a
"coercion" analysis of the Clause. See generally
County of
Allegheny, supra, at 655-679 (opinion of KENNEDY, J.);
McConnell, Coercion: The Lost Element of Establishment, 27 Wm.
& Mary L. Rev. 933 (1986). 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. Nor does the
extratextual evidence of original meaning stand so unequivocally at
odds with the textual premise inherent in existing precedent that
we should fundamentally reconsider our course.
A
Over the years, this Court has declared the invalidity of many
noncoercive state laws and practices conveying a message of
religious endorsement. For example, in
County of Allegheny,
supra, we forbade the prominent display of a nativity scene on
public proper.ty; without contesting the dissent's observation that
the creche coerced no one into accepting or supporting whatever
message it proclaimed, five Members of the Court found its display
unconstitutional as a state endorsement of Christianity.
Id., at 589-594, 598-602. Likewise, in
Wallace v.
Jaffree, 472 U.
S. 38 (1985), we struck down a state law requiring a moment of
silence in public classrooms not because the statute coerced
students to participate in prayer (for it did not), but because the
manner of
619
its enactment "convey[ed] a message of state approval of prayer
activities in the public schools."
Id., at 61; see also
id., at 67-84 (O'CONNOR, J., concurring in judgment). Cf.
Engel v.
Vitale, 370 U. S., at 431 ("When the power,
prestige and financial support of government is placed behind a
particular religious belief, the indirect coercive pressure upon
religious minorities to conform to the prevailing officially
approved religion is plain. But the purposes underlying the
Establishment Clause go much further than that").
In
Epperson v.
Arkansas, 393 U. S. 97 (1968), we
invalidated a state law that barred the teaching of Darwin's theory
of evolution because, even though the statute obviously did not
coerce anyone to support religion or participate in any religious
practice, it was enacted for a singularly religious purpose. 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"). And in
School
Dist. of Grand Rapids v.
Ball, 473 U. S. 373 (1985), we
invalidated a program whereby the State sent public school teachers
to parochial schools to instruct students on ostensibly
nonreligious matters; while the scheme clearly did not coerce
anyone to receive or subsidize religious instruction, we held it
invalid because, among other things, "[t]he symbolic union of
church and state inherent in the [program] threatens to convey a
message of state support for religion to students and to the
general public."
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").
Our precedents may not always have drawn perfectly straight
lines. They simply cannot, however, support the position that a
showing of coercion is necessary to a successful Establishment
Clause claim.
620
B
Like the prOVISIOns about "due" process and "unreasonable"
searches and seizures, the constitutional language forbidding laws
"respecting an establishment of religion" is not pellucid. But
virtually everyone acknowledges that the Clause bans more than
formal establishments of religion in the traditional sense, that
is, massive state support for religion through, among other means,
comprehensive schemes of taxation. See generally Levy 1-62
(discussing such establishments in the Colonies and early States).
This much follows from the Framers' explicit rejection of simpler
provisions prohibiting either the establishment of a religion or
laws "establishing religion" in favor of the broader ban on laws
"respecting an establishment of religion." See
supra, at
612-614.
While some argue that the Framers added the word "respecting"
simply to foreclose federal interference with state establishments
of religion, see,
e. g., Amar, The Bill of Rights as
a Constitution, 100 Yale L. J. 1131, 1157 (1991), the language
sweeps more broadly than that. In Madison's words, the Clause in
its final form forbids "everything like" a national religious
establishment, see Madison's "Detached Memoranda" 558, and, after
incorporation, it forbids "everything like" a state religious
establishment.4 Cf.
County of Allegheny, 492 U. S., at 649
(opinion of STEVENS, J.). The sweep is broad enough that Madison
himself characterized congressional provisions for legislative and
military chaplains as unconstitutional "establishments." Madison's
"Detached Memoranda" 558-559; see
infra, at 624-625, and n.
6.
4 In
Everson v.
Board of Ed. of Ewing, 330 U. S. 1 (1947), we
unanimously incorporated the Establishment Clause into the Due
Process Clause of the Fourteenth Amendment and, by so doing,
extended its reach to the actions of States.
Id., at 14-15;
see also
Cantwell v.
Connecticut, 310 U. S. 296, 303 (1940)
(dictum). Since then, not one Member of this Court has proposed
disincorporating the Clause.
621
While petitioners insist that the prohibition extends only to
the "coercive" features and incidents of establishment, they cannot
easily square that claim with the constitutional text. The First
Amendment forbids not just laws "respecting an establishment of
religion," but also those "prohibiting the free exercise thereof."
Yet laws that coerce nonadherents to "support or participate in any
religion or its exercise,"
County of Allegheny, supra, at
659-660 (opinion of KENNEDY, J.), would virtually by definition
violate their right to religious free exercise. See
Employment
Div., Dept. of Human Resources of Ore. v.
Smith,
494 U. S. 872,
877 (1990) (under Free Exercise Clause, "government may not compel
affirmation of religious belief"), citing
Torcaso v.
Watkins, 367
U. S. 488 (1961); see also J. Madison, Memorial and
Remonstrance Against Religious Assessments (1785) (compelling
support for religious establishments violates "free exercise of
Religion"), quoted in 5 The Founders' Constitution, at 82, 84.
Thus, a literal application of the coercion test would render the
Establishment Clause a virtual nullity, as petitioners' counsel
essentially conceded at oral argument. Tr. of Oral Arg. 18.
Our cases presuppose as much; as we said in
Schoo l Dist. 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." 374 U. S., at 223; see also Laycock, "Nonpreferential"
Aid 922 ("If coercion is ... an element of the establishment
clause, establishment adds nothing to free exercise"). While one
may argue that the Framers meant the Establishment Clause simply to
ornament the First Amendment, cf. T. Curry, The First Freedoms
216-217 (1986), that must be a reading of last resort. Without
compelling evidence to the contrary, we should presume that the
Framers meant the Clause to stand for something more than
petitioners attribute to it.
622
C
Petitioners argue from the political setting in which the
Establishment Clause was framed, and from the Framers' own
political practices following ratification, that government may
constitutionally endorse religion so long as it does not coerce
religious conformity. The setting and the practices warrant
canvassing, but while they yield some evidence for petitioners'
argument, they do not reveal the degree of consensus in early
constitutional thought that would raise a threat to
stare
decisis by challenging the presumption that the Establishment
Clause adds something to the Free Exercise Clause that follows
it.
The Framers adopted the Religion Clauses in response to a long
tradition of coercive state support for religion, particularly in
the form of tax assessments, but their special antipathy to
religious coercion did not exhaust their hostility to the features
and incidents of establishment. Indeed, Jefferson and Madison
opposed any political appropriation of religion, see
infra,
at 623-626, and, even when challenging the hated assessments, they
did not always temper their rhetoric with distinctions between
coercive and noncoercive state action. When, for example, Madison
criticized Virginia's general assessment bill, he invoked
principles antithetical to all state efforts to promote religion.
An assessment, he wrote, is improper not simply because it forces
people to donate "three pence" to religion, but, more broadly,
because "it is itself a signal of persecution. It degrades from the
equal rank of Citizens all those whose opinions in Religion do not
bend to those of the Legislative authority." J. Madison, Memorial
and Remonstrance Against Religious Assessments (1785), in 5 The
Founders' Constitution, at 83. Madison saw that, even without the
tax collector's participation, an official endorsement of religion
can impair religious liberty.
Petitioners contend that because the early Presidents included
religious messages in their inaugural and Thanksgiving Day
addresses, the Framers could not have meant the
623
Establishment Clause to forbid noncoercive state endorsement of
religion. The argument ignores the fact, however, that Americans
today find such proclamations less controversial than did the
founding generation, whose published thoughts on the matter belie
petitioners' claim. President Jefferson, for example, steadfastly
refused to issue Thanksgiving proclamations of any kind, in part
because he thought they violated the Religion Clauses. Letter from
Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808), in 5 The
Founders' Constitution, at 98. In explaining his views to the
Reverend Samuel Miller, Jefferson effectively anticipated, and
rejected, petitioners' position:
"[I]t is only proposed that I should recommend, not
prescribe a day of fasting & prayer. That is, that I should
indirectly assume to the U. S. an authority over religious
exercises which the Constitution has directly precluded from them.
It must be meant too that this recommendation is to carry some
authority, and to be sanctioned by some penalty on those who
disregard it; not indeed of fine and imprisonment, but of some
degree of proscription perhaps in public opinion." Id., at
98-99 (emphasis in original).
By condemning such noncoercive state practices that, in
"recommending" the majority faith, demean religious dissenters "in
public opinion," Jefferson necessarily condemned what, in modern
terms, we call official endorsement of religion. He accordingly
construed the Establishment Clause to forbid not simply state
coercion, but also state endorsement, of religious belief and
observance.5 And if he opposed
5Petitioners claim that the quoted passage shows that Jefferson
regarded Thanksgiving proclamations as "coercive": "Thus, while one
may disagree with Jefferson's view that a recommendatory
Thanksgiving proclamation would nonetheless be coercive ... one
cannot disagree that Jefferson believed coercion to be a necessary
element of a First Amendment violation." Brief for Petitioners 34.
But this is wordplay. The "proscription" to which Jefferson
referred was, of course, by the public and not
624
impersonal Presidential addresses for inflicting "proscription
in public opinion," all the more would he have condemned less
diffuse expressions of official endorsement.
During his first three years in office, James Madison also
refused to call for days of thanksgiving and prayer, though later,
amid the political turmoil of the War of 1812, he did so on four
separate occasions. See Madison's "Detached Memoranda" 562, and n.
54. Upon retirement, in an essay condemning as an unconstitutional
"establishment" the use of public money to support congressional
and military chaplains,
id., at 558-560,6 he concluded that
"[r]eligious procla-
the government, whose only action was a noncoercive
recommendation. And one can call any act of endorsement a form of
coercion, but only if one is willing to dilute the meaning of
"coercion" until there is no meaning left. Jefferson's position
straightforwardly contradicts the claim that a showing of
"coercion," under any normal definition, is prerequisite to a
successful Establishment Clause claim. 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. See Inaugural
Addresses of the Presidents of the United States 17,22-23 (1989);
see also n. 3,
supra.
Petitioners also seek comfort in a different passage of the same
letter.
Jefferson argued that Presidential religious proclamations
violate not just the Establishment Clause, but also the Tenth
Amendment, for "what might be a right in a state government, was a
violation of that right when assumed by another." Letter from
Thomas Jefferson to Rev. S. Miller (Jan. 23,1808), in 5 The
Founders' Constitution 99 (P. Kurland & R. Lerner eds. 1987).
Jefferson did not, however, restrict himself to the Tenth Amendment
in condemning such proclamations by a national officer. I do not,
in any event, understand petitioners to be arguing that the
Establishment Clause is exclusively a structural provision
mediating the respective powers of the State and National
Governments. Such a position would entail the argument, which
petitioners do not make, and which we would almost certainly
reject, that incorporation of the Establishment Clause under the
Fourteenth Amendment was erroneous.
6 Madison found this practice "a palpable violation of ...
Constitutional principles." Madison's "Detached Memoranda" 558.
Although he sat on the committee recommending the congressional
chaplainship, see R. Cord, Separation of Church and State:
Historical Fact and Current Fiction 23
625
mations by the Executive recommending thanksgivings & fasts
are shoots from the same root with the legislative acts reviewed.
Altho' recommendations only, they imply a religious agency, making
no part of the trust delegated to political rulers."
Id., at
560. 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."
Id., at 562
(footnote omitted).
Madison's failure to keep pace with his principles in the face
of congressional pressure cannot erase the principles. He admitted
to backsliding, and explained that he had made the content of his
wartime proclamations inconsequential enough to mitigate much of
their impropriety. See
ibid.; see also Letter from J.
Madison to E. Livingston (July 10, 1822), in 5 The Founders'
Constitution, at 105. While his writings suggest mild variations in
his interpretation of the Establishment Clause, Madison was no
different in that respect from the rest of his political
generation. That he expressed so much doubt about the
constitutionality of religious proclamations, however, suggests a
brand of separationism stronger even than that embodied in our
traditional jurisprudence. 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. See
Marsh v.
Chambers, 463 U. S. 783 (1983)
(legislative chap-
(1988), he later insisted that "it was not with my approbation,
that the deviation from [the immunity of religion from civil
jurisdiction] took place in Congs., when they appointed Chaplains,
to be paid from the N at!. Treasury." Letter from J. Madison to E.
Livingston (July 10, 1822), in 5 The Founders' Constitution, at
105.
626
lains);
Katcoff v.
Marsh, 755
F.2d 223 (CA2 1985) (military chaplains).
To be sure, the leaders of the young Republic engaged in some of
the practices that separationists like Jefferson and Madison
criticized. The First Congress did hire institutional chaplains,
see
Marsh v.
Chambers, supra, at 788, and Presidents
Washington and Adams unapologetically marked days of" 'public
thanksgiving and prayer,'" see R. Cord, Separation of Church and
State 53 (1988). Yet in the face of the separationist dissent,
those practices prove, at best, that the Framers simply did not
share a common understanding of the Establishment Clause, and, at
worst, that they, like other politicians, could raise
constitutional ideals one day and turn their backs on them the
next. "Indeed, by 1787 the provisions of the state bills of rights
had become what Madison called mere 'paper parchments' -expressions
of the most laudable sentiments, observed as much in the breach as
in practice." Kurland, The Origins of the Religion Clauses of the
Constitution, 27 Wm. & Mary L. Rev. 839, 852 (1986) (footnote
omitted). Sometimes the National Constitution fared no better. Ten
years after proposing the First Amendment, Congress passed the
Alien and Sedition Acts, measures patently unconstitutional by
modern standards. If the early Congress's political actions were
determinative, and not merely relevant, evidence of constitutional
meaning, we would have to gut our current First Amendment doctrine
to make room for political censorship.
While we may be unable to know for certain what the Framers
meant by the Clause, we do know that, around the time of its
ratification, a respectable body of opinion supported a
considerably broader reading than petitioners urge upon us. This
consistency with the textual considerations is enough to preclude
fundamentally reexamining our settled law, and I am accordingly
left with the task of considering whether the state practice at
issue here violates our traditional understanding of the Clause's
proscriptions.
627
III
While the Establishment Clause's concept of neutrality is not
self-revealing, our recent cases have invested it with specific
content: the State may not favor or endorse either religion
generally over nonreligion or one religion over others. See,
e.
g., County of Allegheny, 492 U. S., at 589-594, 598
602;
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. of Grand Rapids, 473 U. S., at 389-392;
Wallace v.
Jaffree, 472 U. S., at 61; see also Laycock, Formal,
Substantive, and Disaggregated Neutrality Toward Religion, 39
DePaul L. Rev. 993 (1990); cf.
Lemon v.
Kurtzman,
403 U. S. 602,
612-613 (1971). This principle against favoritism and endorsement
has become the foundation of Establishment Clause jurisprudence,
ensuring that religious belief is irrelevant to every citizen's
standing in the political community, see
County of Allegheny,
supra, at 594; J. Madison, Memorial and Remonstrance Against
Religious Assessments (1785), in 5 The Founders' Constitution, at
82-83, and protecting religion from the demeaning effects of any
governmental embrace, see
id., at 83. Now, as in the early
Republic, "religion & Govt. will both exist in greater purity,
the less they are mixed together." Letter from J. Madison to E.
Livingston (July 10, 1822), in 5 The Founders' Constitution, at
106. Our aspiration to religious liberty, embodied in the First
Amendment, permits no other standard.
A
That government must remain neutral in matters of religion does
not foreclose it from ever taking religion into account. The State
may "accommodate" the free exercise of religion by relieving people
from generally applicable rules that interfere with their religious
callings. See,
e. g., Corporation of Presiding Bishop of Church
of Jesus Christ of Latter-day Saints v.
Amos, 483 U. S. 327 (1987); see
also
Sherbert v.
Verner, 374 U. S. 398 (1963).
Contrary to the
628
views of some,7 such accommodation does not necessarily signify
an official endorsement of religious observance over disbelief.
In everyday life, we routinely accommodate religious beliefs
that we do not share. A Christian inviting an Orthodox Jew to lunch
might take pains to choose a kosher restaurant; an atheist in a
hurry might yield the right of way to an Amish man steering a
horse-drawn carriage. In so acting, we express respect for, but not
endorsement of, the fundamental values of others. We act without
expressing a position on the theological merit of those values or
of religious belief in general, and no one perceives us to have
taken such a position.
The government may act likewise. Most religions encourage
devotional practices that are at once crucial to the lives of
believers and idiosyncratic in the eyes of nonadherents. By
definition, secular rules of general application are drawn from the
nonadherent's vantage and, consequently, fail to take such
practices into account. Yet when enforcement of such rules cuts
across religious sensibilities, as it often does, it puts those
affected to the choice of taking sides between God and government.
In such circumstances, accommodating religion reveals nothing
beyond a recognition that general rules can unnecessarily offend
the religious conscience when they offend the conscience of secular
society not at all. Cf.
Welsh v.
United States,
398 U. S. 333,
340 (1970) (plurality opinion). Thus, in freeing the Native
American Church from federal laws forbidding peyote use, see Drug
Enforcement Administration Miscellaneous Exemptions, 21 CFR
7 See,
e. g., Thomas v.
Review Ed. of Indiana
Employment Security Div., 450 U. S. 707, 726 (1981)
(REHNQUIST, J., dissenting); Choper, The Religion Clauses of the
First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673,
685-686 (1980); see also
Walz v.
Tax Comm'n of New York
City, 397 U. S.
664,668-669 (1970);
Sherbert v.
Verner, 374 U. S. 398, 414, 416
(1963) (Stewart, J., concurring in result); cf.
Wallace v.
Jaffree, 472 U. S., at 83 (O'CONNOR, J., concurring in
judgment).
629
§ 1307.31 (1991), the government conveys no endorsement of
peyote rituals, the Church, or religion as such; it simply respects
the centrality of peyote to the lives of certain Americans. See
Note, The Free Exercise Boundaries of Permissible Accommodation
Under the Establishment Clause, 99 Yale L. J. 1127, 1135-1136
(1990).
B
Whatever else may define the scope of accommodation permissible
under the Establishment Clause, one requirement is clear:
accommodation must lift a discernible burden on the free exercise
of religion. See
County of Allegheny, supra, at 601, n. 51;
id., at 631-632 (O'CONNOR, J., concurring in part and
concurring in judgment);
Corporation of Presiding Bishop,
supra, at 348 (O'CONNOR, J., concurring in judgment); see also
Texas Monthly, supra, at 18, 18-19, n. 8 (plurality
opinion);
Wallace v.
Jaffree, supra, at 57-58, n. 45.
But see
County of Allegheny, supra, at 663, n. 2 (KENNEDY,
J., concurring in judgment in part and dissenting in part). Concern
for the position of religious individuals in the modern regulatory
State cannot justify official solicitude for a religious practice
unburdened by general rules; such gratuitous largesse would
effectively favor religion over disbelief. By these lights one
easily sees that, in sponsoring the graduation prayers at issue
here, the State has crossed the line from permissible accommodation
to unconstitutional establishment.
Religious students cannot complain that omitting prayers from
their graduation ceremony would, in any realistic sense, "burden"
their spiritual callings. To be sure, many of them invest this rite
of passage with spiritual significance, but they may express their
religious feelings about it before and after the ceremony. They may
even organize a privately sponsored baccalaureate if they desire
the company of likeminded students. Because they accordingly have
no need for the machinery of the State to affirm their beliefs,
the
630
government's sponsorship of prayer at the graduation ceremony is
most reasonably understood as an official endorsement of religion
and, in this instance, of theistic religion. One may fairly say, as
one commentator has suggested, that the government brought prayer
into the ceremony "precisely because some people want a symbolic
affirmation that government approves and endorses their religion,
and because many of the people who want this affirmation place
little or no value on the costs to religious minorities." Laycock,
Summary and Synthesis: The Crisis in Religious Liberty, 60 Geo.
Wash. L. Rev. 841, 844 (1992).8
Petitioners would deflect this conclusion by arguing that
graduation prayers are no different from Presidential religious
proclamations and similar official "acknowledgments" of religion in
public life. But religious invocations in Thanksgiving Day
addresses and the like, rarely noticed, ignored without effort,
conveyed over an impersonal medium, and directed at no one in
particular, inhabit a pallid zone worlds apart from official
prayers delivered to a captive audience of public school students
and their families. Madison himself respected the difference
between the trivial and the serious in constitutional practice.
Realizing that his con-
8 If the State had chosen its graduation day speakers according
to wholly secular criteria, and if one of those speakers (not a
state actor) had individually chosen to deliver a religious
message, it would have been harder to attribute an endorsement of
religion to the State. Cf.
Witters v.
Washington Dept. of
Services for Blind, 474 U. S. 481 (1986). But
that is not our case. Nor is this a case where the State has,
without singling out religious groups or individuals, extended
benefits to them as members of a broad class of beneficiaries
defined by clearly secular criteria. See
Widmar v.
Vincent, 454
U. S. 263, 274-275 (1981);
Walz, supra, at 696 (opinion
of Harlan, J.) ("In any particular case the critical question is
whether the circumference of legislation encircles a class so broad
that it can be fairly concluded that religious institutions could
be thought to fall within the natural perimeter"). Finally, this is
not a case like
Marsh v.
Chambers, 463 U. S. 783 (1983), in
which government officials invoke spiritual inspiration entirely
for their own benefit without directing any religious message at
the citizens they lead.
631
temporaries were unlikely to take the Establishment Clause
seriously enough to forgo a legislative chaplainship, he suggested
that "[r]ather than let this step beyond the landmarks of power
have the effect of a legitimate precedent, it will be better to
apply to it the legal aphorism de minimis non curat lex .... "
Madison's "Detached Memoranda" 559; see also Letter from J. Madison
to E. Livingston (July 10, 1822), in 5 The Founders' Constitution,
at 105. But that logic permits no winking at the practice in
question here. When public school officials, armed with the State's
authority, convey an endorsement of religion to their students,
they strike near the core of the Establishment Clause. However
"ceremonial" their messages may be, they are flatly
unconstitutional.
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."
County of Allegheny v.
American Civil Liberties Union, Greater Pittsburgh Chapter,
492 U. S. 573,
657, 670 (1989) (KENNEDY, J., concurring in judgment in part and
dissenting in part).
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
632
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.
See
Durham v.
United States, 94 U. S. App. D. C. 228,
214 F.2d
862 (1954). 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.
I
Justice Holmes' aphorism that "a page of history is worth a
volume of logic,"
New York Trust Co. v.
Eisner,
256 U. S. 345,
349 (1921), applies with particular force to our Establishment
Clause jurisprudence. As we have recognized, our interpretation of
the Establishment Clause should "compor[t] with what history
reveals was the contemporaneous understanding of its guarantees."
Lynch v.
Donnelly, 465 U. S. 668, 673
(1984). "[T]he line we must draw between the permissible and the
impermissible is one which accords with history and faithfully
reflects the understanding of the Founding Fathers."
School
Dist. of Abington v.
Schempp, 374 U. S. 203, 294 (1963)
(Brennan, J., concurring). "[H]istorical evidence sheds light not
only on what the draftsmen intended the Establishment Clause to
mean, but also on how they thought that Clause applied" to
contemporaneous practices.
Marsh v.
Chambers,
463 U. S. 783,
790 (1983). Thus, "[t]he existence from the beginning of the
Nation's life of a practice, [while] not conclusive of its
constitutionality ... [,] is a fact of considerable import in the
interpretation" of the
633
Establishment Clause.
Walz v.
Tax Comm'n of New York
City, 397 U. S.
664, 681 (1970) (Brennan, J., concurring).
The history and tradition of our Nation are replete with public
ceremonies featuring prayers of thanksgiving and petition.
Illustrations of this point have been amply provided in our prior
opinions, see,
e. g., Lynch, supra, at 674-678;
Marsh,
supra, at 786-788; see also
Wallace v.
Jaffree,
472 U. S. 38,
100-103 (1985) (REHNQUIST, J., dissenting);
Engel v.
Vitale, 370 U.
S. 421, 446-450, and n. 3 (1962) (Stewart, J., dissenting), but
since the Court is so oblivious to our history as to suggest that
the Constitution restricts "preservation and transmission of
religious beliefs ... to the private sphere,"
ante, at 589,
it appears necessary to provide another brief account.
From our Nation's origin, prayer has been a prominent part of
governmental ceremonies and proclamations. The Declaration of
Independence, the document marking our birth as a separate people,
"appeal[ed] to the Supreme Judge of the world for the rectitude of
our intentions" and avowed "a firm reliance on the protection of
divine Providence." In his first inaugural address, after swearing
his oath of office on a Bible, George Washington deliberately made
a prayer a part of his first official act as President:
"[I]t would be peculiarly improper to omit in this first
official act my fervent supplications to that Almighty Being who
rules over the universe, who presides in the councils of nations,
and whose providential aids can supply every human defect, that His
benediction may consecrate to the liberties and happiness of the
people of the United States a Government instituted by themselves
for these essential purposes." Inaugural Addresses of the
Presidents of the United States, S. Doc. 101-10, p.2 (1989).
Such supplications have been a characteristic feature of
inaugural addresses ever since. Thomas Jefferson, for example,
634
prayed in his first inaugural address: "[MJay that Infinite
Power which rules the destinies of the universe lead our councils
to what is best, and give them a favorable issue for your peace and
prosperity."
Id., at 17. In his second inaugural address,
Jefferson acknowledged his need for divine guidance and invited his
audience to join his prayer:
"I shall need, too, the favor of that Being in whose hands we
are, who led our fathers, as Israel of old, from their native land
and planted them in a country flowing with all the necessaries and
comforts of life; who has covered our infancy with His providence
and our riper years with His wisdom and power, and to whose
goodness I ask you to join in supplications with me that He will so
enlighten the minds of your servants, guide their councils, and
prosper their measures that whatsoever they do shall result in your
good, and shall secure to you the peace, friendship, and
approbation of all nations." Id., at 22-23.
Similarly, James Madison, in his first inaugural address, placed
his confidence
"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."
Id., at 28.
Most recently, President Bush, continuing the tradition
established by President Washington, asked those attending his
inauguration to bow their heads, and made a prayer his first
official act as President.
Id., at 346.
Our national celebration of Thanksgiving likewise dates back to
President Washington. As we recounted in
Lynch:
635
"The day after the First Amendment was proposed, Congress urged
President Washington to proclaim 'a day of public thanksgiving and
prayer, to be observed by acknowledging with grateful hearts the
many and signal favours of Almighty God.' President Washington
proclaimed November 26, 1789, a day of thanksgiving to 'offe[r] our
prayers and supplications to the Great Lord and Ruler of Nations,
and beseech Him to pardon our national and other transgressions
.... '" 465 U. S., at 675, n. 2 (citations omitted).
This tradition of Thanksgiving Proclamations-with their
religious theme of prayerful gratitude to God-has been adhered to
by almost every President.
Id., at 675, and nn. 2 and 3;
Wallace v.
Jaffree, supra, at 100-103 (REHNQUIST, J.,
dissenting).
The other two branches of the Federal Government also have a
long-established practice of prayer at public events. As we
detailed in
Marsh, congressional sessions have opened with a
chaplain's prayer ever since the First Congress. 463 U. S., at
787-788. And this Court's own sessions have opened with the
invocation "God save the United States and this Honorable Court"
since the days of Chief Justice Marshall. 1 C. Warren, The Supreme
Court in United States History 469 (1922).
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 Fourteenth 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." Brodinsky, Commencement
Rites Obsolete? Not At All, A 10-Week Study Shows, 10 Updat-
636
ing School Board Policies, No.4, p. 3 (Apr. 1979). As the Court
obliquely acknowledges in describing the "customary features" of
high school graduations,
ante, at 583, and as respondents do
not contest, 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." H. McKown,
Commencement Activities 56 (1931); see also Brodinsky,
supra, at 5.
II
The Court presumably would separate graduation invocations and
benedictions from other instances of public "preservation and
transmission of religious beliefs" on the ground that they involve
"psychological coercion." 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."
American Jewish
Congress v.
Chicago, 827 F.2d
120, 129 (CA7 1987) (Easterbrook, J., dissenting). But interior
decorating is a rock-hard science compared to psychology practiced
by amateurs. A few citations of "[r]esearch in psychology" that
have no particular bearing upon the precise issue here,
ante, at 593, cannot disguise the fact that the Court has
gone beyond the realm where judges know what they are doing. 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 Court identifies two "dominant facts" that it says dictate
its ruling that invocations and benedictions at public school
graduation ceremonies violate the Establishment Clause.
Ante, at 586. Neither of them is in any relevant sense
true.
637
A
The Court declares that students' "attendance and participation
in the [invocation and benediction] are in a fair and real sense
obligatory."
Ibid. But what exactly is this "fair and real
sense"? 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.
Ante, at 593. This assertion-the
very
linchpin of the Court's opinion-is almost as intriguing for
what it does not say as for what it says. It does not say, for
example, that students are psychologically coerced to bow their
heads, place their hands in a Durer-like prayer position, pay
attention to the prayers, utter "Amen," or in fact pray. (Perhaps
further intensive psychological research remains to be done on
these matters.) It claims only that students are psychologically
coerced "to stand ...
or, at least, maintain respectful
silence."
Ibid. (emphasis added). Both halves of this
disjunctive
(both of which must amount to the fact or
appearance of participation in prayer if the Court's analysis is to
survive on its own terms) merit particular attention.
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. We indeed live in a vulgar age. 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. 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.
ante, at 593, there is absolutely no basis for the
Court's
638
decision. 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. It is beyond the absurd to say that
she could entertain such a belief while pointedly declining to
rise.
But let us assume the very worst, that the nonparticipating
graduate is "subtly coerced" ... to stand! Even that half of the
disjunctive does not remotely establish a "participation" (or an
"appearance of participation") in a religious exercise. The Court
acknowledges that "in our culture standing ... can signify
adherence to a view or simple respect for the views of others."
Ibid. (Much more often the latter than the former, I think,
except perhaps in the proverbial town meeting, where one votes by
standing.) But if it is a permissible inference that one who is
standing is doing so simply out of respect for the prayers of
others that are in progress, then how can it possibly be said that
a "reasonable dissenter ... could believe that the group exercise
signified her own participation or approval"? Quite obviously, it
cannot. I may add, moreover, that maintaining respect for the
religious observances of others is a fundamental civic virtue that
government (including the public schools) can and should
cultivate-so that even if it were the case that the displaying of
such respect might be mistaken for taking part in the prayer, I
would deny that the dissenter's interest in avoiding
even the
false appearance of participation constitutionally trumps the
government's interest in fostering respect for religion
generally.
The opinion manifests that the Court itself has not given
careful consideration to its test of psychological coercion. For if
it had, how could it observe, with no hint of concern or
disapproval, that students stood for the Pledge of Allegiance,
which immediately preceded Rabbi Gutterman's invocation?
Ante, at 583. The government can, of course, no more coerce
political orthodoxy than religious orthodoxy.
West
639
Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624, 642
(1943). 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. If students were
psychologically coerced to remain standing during the invocation,
they must also have been psychologically coerced, moments before,
to stand for (and thereby, in the Court's view, take part in or
appear to take part in) the Pledge. Must the Pledge therefore be
barred from the public schools (both from graduation ceremonies and
from the classroom)? In
Barnette we held that a public
school student could not be compelled to
recite the Pledge;
we did not even hint that she could not be compelled to observe
respectful silence-indeed, even to
stand in respectful
silence-when those who wished to recite it did so. Logically, that
ought to be the next project for the Court's bulldozer.
I also 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.
Ante, at 593. 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
first-graders? Will we soon have a jurisprudence that distinguishes
between mature and immature adults?
B
The other "dominant fac[t]" identified by the Court is that
"[s]tate officials direct the performance of a formal religious
exercise" at school graduation ceremonies.
Ante, at 586.
"Direct[ing] the performance of a formal religious exercise" has a
sound ofliturgy to it, summoning up images of the principal
directing acolytes where to carry the cross, or showing the rabbi
where to unroll the Torah. A Court professing to be
640
engaged in a "delicate and fact-sensitive" line-drawing,
ante, at 597, would better describe what it means as
"prescribing the content of an invocation and benediction." But
even that would be false. 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. How these facts can
fairly be transformed into the charges that Principal Lee "directed
and controlled the content of [Rabbi Gutterman's] prayer,"
ante, at 588, that school officials "monitor prayer,"
ante, at 590, and attempted to "'compose official prayers,'"
ante, at 588, and that the "government involvement with
religious activity in this case is pervasive,"
ante, at 587,
is difficult to fathom. 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.
These distortions of the record are, of course, not harmless
error: without them the Court's solemn assertion that the school
officials could reasonably be perceived to be "enforc[ing] a
religious orthodoxy,"
ante, at 592, would ring as hollow as
it ought.
III
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. 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
641
church was required; only clergy of the official church could
lawfully perform sacraments; and dissenters, if tolerated, faced an
array of civil disabilities. L. Levy, The Establishment Clause 4
(1986). Thus, for example, in the Colony of Virginia, where the
Church of England had been established, ministers were required by
law to conform to the doctrine and rites of the Church of England;
and all persons were required to attend church and observe the
Sabbath, were tithed for the public support of Anglican ministers,
and were taxed for the costs of building and repairing churches.
Id., at 3-4.
The Establishment Clause was adopted to prohibit such an
establishment of religion at the federal level (and to protect
state establishments of religion from federal interference). I will
further acknowledge for the sake of argument that, as some scholars
have argued, by 1790 the term "establishment" had acquired an
additional meaning-"financial support of religion generally, by
public taxation" -that reflected the development of "general or
multiple" establishments, not limited to a single church.
Id., at 8-9. But that would still be an establishment
coerced
by force of law. And I will further concede that our
constitutional tradition, from the Declaration of Independence and
the first inaugural address of Washington, quoted earlier, down to
the present day, has, with a few aberrations, see
Church of Holy
Trinity v.
United States, 143 U. S. 457 (1892),
ruled out of order governmentsponsored endorsement of religion-even
when no legal coercion is present, and indeed even when no ersatz,
"peerpressure" psycho-coercion is present-where the endorsement is
sectarian, in the sense of specifying details upon which men and
women who believe in a benevolent, omnipotent Creator and Ruler of
the world are known to differ (for example, the divinity of
Christ). But there 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
642
them-violated the Constitution of the United States. To the
contrary, they are so characteristically American they could have
come from the pen of George Washington or Abraham Lincoln
himself.
Thus, while I have no quarrel with the Court's general
proposition that the Establishment Clause "guarantees that
government may not coerce anyone to support or participate in
religion or its exercise,"
ante, at 587, I see no warrant
for expanding the concept of coercion beyond acts backed by threat
of penalty-a brand of coercion that, happily, is readily
discernible to those of us who have made a career of reading the
disciples of Blackstone rather than of Freud. The Framers were
indeed opposed to coercion of religious worship by the National
Government; but, as their own sponsorship of nonsectarian prayer in
public events demonstrates, they understood that "[s]peech is not
coercive; the listener may do as he likes."
American Jewish
Congress v.
Chicago, 827 F. 2d, at 132 (Easterbrook, J.,
dissenting).
This historical discussion places in revealing perspective the
Court's extravagant claim that the State has "for all practical
purposes,"
ante, at 589, and "in every practical sense,"
ante, at 598, compelled students to participate in prayers
at graduation. Beyond the fact, stipulated to by the parties, that
attendance at graduation is voluntary, there is nothing in the
record to indicate that failure of attending students to take part
in the invocation or benediction was subject to any penalty or
discipline. Contrast this with, for example, the facts of
Barnette: Schoolchildren were required by law to recite the
Pledge of Allegiance; failure to do so resulted in expulsion,
threatened the expelled child with the prospect of being sent to a
reformatory for criminally inclined juveniles, and subjected his
parents to prosecution (and incarceration) for causing delinquency.
319 U. S., at 629-630. To characterize the "subtle coercive
pressures,"
ante, at 588, allegedly present here as the
"practical" equiva-
643
lent of the legal sanctions in
Barnette is ... well, let
me just say it is not a "delicate and fact-sensitive" analysis.
The Court relies on our "school prayer" cases,
Engel
v.
Vitale, 370
U. S. 421 (1962), and
School Dist. of Abington v.
Schempp, 374
U. S. 203 (1963).
Ante, at 592. But whatever the merit
of those cases, they do not support, much less compel, the Court's
psycho-journey. In the first place,
Engel and
Schempp
do not constitute an exception to the rule, distilled from
historical practice, that public ceremonies may include prayer, see
supra, at 633-636; rather, they simply do not fall within
the scope of the rule (for the obvious reason that school
instruction is not a public ceremony). Second, we have made clear
our understanding that school prayer occurs within a framework in
which legal coercion to attend school (i.
e., coercion under
threat of penalty) provides the ultimate backdrop. In
Schempp, for example, we emphasized that the prayers were
"prescribed as part of the curricular activities of students who
are
required by law to attend school." 374 U. S., at 223
(emphasis added).
Engel's suggestion that the school prayer
program at issue there-which permitted students "to remain silent
or be excused from the room," 370 U. S., at 430-involved "indirect
coercive pressure,"
id., at 431, should be understood
against this backdrop of legal coercion. 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. And finally,
our school prayer cases turn in part on the fact that the classroom
is inherently an instructional setting, and daily prayer
there-where parents are not present to counter "the students'
emulation of teachers as role models and the children's
susceptibility to peer pressure,"
Edwards v.
Aguillard, 482
U. S. 578, 584 (1987)-might be thought to raise special
concerns regarding state interference with the liberty of parents
to direct the religious upbringing of their children: "Families
entrust pub-
644
lie schools with the education of their children, but condition
their trust on the understanding that the classroom will not
purposely be used to advance religious views that may conflict with
the private beliefs of the student and his or her family."
Ibid.; see
Pierce v.
Society of Sisters,
268 U. S.
510,534-535 (1925). Voluntary prayer at graduation-a onetime
ceremony at which parents, friends, and relatives are present-can
hardly be thought to raise the same concerns.
IV
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 longaccepted constitutional
traditions. 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. See,
e. g., County of
Allegheny, 492 U. S., at 655-656 (opinion of KENNEDY, J.);
Edwards v.
Aguillard, supra, at 636-640 (SCALIA, J.,
dissenting);
Wallace v.
Jaffree, 472 U. S., at
108-112 (REHNQUIST, J., dissenting);
Aguilar v.
Felton, 473 U.
S. 402, 426-430 (1985) (O'CONNOR, J., dissenting);
Roemer v.
Board of Pub. Works of Md., 426 U. S. 736, 768-769
(1976) (WHITE, J., concurring in judgment). The Court today
demonstrates the irrelevance of
Lemon by essentially
ignoring it, see
ante, at 587, 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
645
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.
***
The reader has been told much in this case about the personal
interest of Mr. Weisman and his daughter, and very little about the
personal interests on the other side. They are not inconsequential.
Church and state would not be such a difficult subject if religion
were, as the Court apparently thinks it to be, some purely personal
avocation that can be indulged entirely in secret, like
pornography, in the privacy of one's room. For most believers it is
not that, and has never been. Religious men and women of
almost all denominations have felt it necessary to acknowledge and
beseech the blessing of God as a people, and not just as
individuals, because they believe in the "protection of divine
Providence," as the Declaration of Independence put it, not just
for individuals but for societies; because they believe God to be,
as Washington's first Thanksgiving Proclamation put it, the "Great
Lord and Ruler of Nations." One can believe in the effectiveness of
such public worship, or one can deprecate and deride it. But the
longstanding American tradition of prayer at official ceremonies
displays with unmistakable clarity that the Establishment Clause
does not forbid the government to accommodate it.
The narrow context of the present case involves a community's
celebration of one of the milestones in its young citi-
646
zens' lives, and it is a bold step for this Court to seek to
banish from that occasion, and from thousands of similar
celebrations throughout this land, the expression of gratitude to
God that a majority of the community wishes to make. 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. Rather,
the question is
whether a mandatory choice in favor of the
former has been imposed by the United States Constitution. As
the age-old practices of our people show, the answer to that
question is not at all in doubt.
I must add one final observation: The Founders of our Republic
knew the fearsome potential of sectarian religious belief to
generate civil dissension and civil strife. And they also knew that
nothing, absolutely nothing, is so inclined to foster among
religious believers of various faiths a toleration-no, an
affection-for one another than voluntarily joining in prayer
together, to the God whom they all worship and seek. Needless to
say, no one should be compelled to do that, but it is a shame to
deprive our public culture of the opportunity, and indeed the
encouragement, for people to do it voluntarily. 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. To deprive our society of that important
unifying mechanism, in order to spare the nonbeliever what seems to
me the minimal inconvenience of standing or even sitting in
respectful nonparticipation, is as senseless in policy as it is
unsupported in law.
For the foregoing reasons, I dissent.
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