Lee V. Weisman - Decision

Decision

The 5-4 decision was announced on June 24, 1992. It was a somewhat surprising victory for the Weismans, with Justice Kennedy, far from joining the conservative bloc that favored rolling back restrictions on school prayers, writing the majority opinion that preserved previous Supreme Court precedents that sharply limited the role that religion could play in the nation's public schools. The Blackmun papers reveal that, as in Planned Parenthood v. Casey, 505 U.S. 833 (1992), Kennedy switched his vote during the deliberations, saying that his draft majority opinion upholding the prayer exercise "looked quite wrong." Instead, Kennedy wrote an opinion that, while carefully circumscribed, squarely repudiated the school district's main arguments. He found much wrong with Principal Lee's decision to give the rabbi who was planning to offer the graduation invocation a pamphlet on composing prayers for civic occasions:

"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, and that is what the school officials attempted to do." 505 U.S. 577, 588 (citation omitted).

Kennedy also noted that the nonsectarian nature of the prayer was no defense, as the Establishment Clause forbade coerced prayers in public schools, not just those representing a specific religious tradition. Addressing the State's contention that attendance at the graduation exercises was voluntary, Kennedy remarked that

"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." 505 U.S. 577, 595.

Finally, in answering the argument that participation in the prayer was itself voluntary, Kennedy formulated what is now known as the coercion test:

"As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. Our decisions in and recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy." 505 U.S. 577, 592 (citations omitted).

The coercion test is now used, in addition to the Lemon test and Justice O'Connor's "endorsement or disapproval" test, to determine the constitutionality under the Establishment Clause of certain government actions.

Justice Blackmun's concurrence stressed that "our decisions have gone beyond prohibiting coercion, however, because the Court has recognized that 'the fullest possible scope of religious liberty,' entails more than freedom from coercion." 505 U.S. 577, 606 (citation omitted). Blackmun emphasized that even if no one was compelled, directly or indirectly, to participate in a state-sponsored religious exercise, the government was still without power to place its imprimatur on any religious activity.

Justice Souter devoted his concurring opinion to a historical analysis rebutting the contention that the government could endorse nonsectarian prayers. He cited the writings of James Madison and pointed to the changing versions of the First Amendment that the First Congress considered as opposed to the version it eventually adopted. Souter, too, took issue with the school district's defense of non-coercive religious exercises, dismissing the position as without precedential authority.

Justice Scalia's dissent argued against the coercion test:

"In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court - with nary a mention that it is doing so - lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion..." 505 U.S. 577, 632.

Scalia pointed to several historical examples of calling on divine guidance by American Presidents, including Washington's proclamation of the Thanksgiving holiday in 1789 and the inaugural addresses of both Madison and Thomas Jefferson. He disputed the Court's contention that attendance at high school graduation ceremonies was effectively required as part of social norms, and also the conclusion that students were subtly coerced to stand for the rabbi's invocation. In Scalia's view, only official penalties for refusing to support or adhere to a particular religion created an Establishment Clause violation.

A broad reading of the Establishment Clause won out, but it seems to have its greatest current application in a public school context. The Court has ruled against the separationist position in several key funding cases since Lee, including the school voucher case, Zelman v. Simmons-Harris, 536 U.S. 639 (2002). However, a majority of the Court continues to maintain a strict ban on most forms of state-sponsored religious exercises in schools themselves, as evidenced by the 6-3 ruling in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), which struck down student-led prayers before public school football games.