Teacher Case Summary Lee v. Weisman (1992) School Graduation Prayer

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1 Teacher Case Summary Lee v. Weisman (1992) School Graduation Prayer By Deborah Morris Burton, J.D.

2 Copyright 2013, Deborah Morris Burton First Edition All rights reserved. This book may not be duplicated in any way without the express permission of the author, except in the form of brief excerpts or quotations for the purposes of review. Printed in the United States of America Author: B.S. Journalism, University of Maryland (1985) M.S. Journalism, Drake University (1990) J.D. (law degree), Drake University (1990) Licensed to practice law in Pennsylvania and Maryland (inactive due to full-time homeschooling) Acknowledgements I sincerely appreciate the support, assistance and patience of my husband, Robert, and my sons, Austin and David, during the process of writing this work text. They are God s greatest gifts to me. And I submit with joy to the Lord Jesus Christ, without whom nothing I do has any significance. May all that I write and do bring Him glory. Of course, nothing in this work text or any related materials should be construed in any way as legal advice. General principles are discussed, but if you are facing a legal situation, please seek local, professional legal counsel at once. Visit us at Facebook at HomeschoolCourt

3 General Topic: School Graduation Prayer Type of Case: Trial/Appeal Participants: Respondent Attorney, Petitioner Attorney, Justices (The Respondent is the party who won in the lower court, while the Petitioner is the party who lost in the lower court and seeks to have a higher court reverse the lower court s judgment.) In this case, Lee is the Petitioner and Weisman is the Respondent. In an appeals case based upon a Supreme Court case, the student attorneys will be engaging in oral argument. Evidence is not presented like it is in a trial. In a Supreme Court case, the Petitioner attorney will engage in oral argument to attempt to persuade the Justices to rule in its favor. The Respondent attorney will do the same. In actual cases, each attorney (or group of attorneys) is given 30 minutes to present its case, while also answering the questions of the Justices. You may have a different time limit in your mock trial. Lee v. Weisman, 505 U.S. 577 (1992) The issue on appeal is whether including clergy who offer prayers as part of an official school graduation ceremony is consistent with the Religion Clauses of the First Amendment (which the Fourteenth Amendment makes applicable to the states and their school districts). For an appellate case, the attorneys argue from previous case law that relate to facts specific to the case at hand. 1. Case Summary In 1989, Deborah Weisman graduated from a public middle school in Providence, Rhode Island. It was the policy of the Providence School Committee and the Superintendent of Schools to permit principals to invite members of the clergy to give invocations (opening prayers) and benedictions (closing prayers) at middle school and high school graduations. Many, but not all, of the principals chose to include prayers as part of the graduation ceremonies. Deborah s father, Daniel, objected to any prayers at Deborah s middle school graduation. However, the school principal, Robert Lee, invited Rabbi Leslie Gutterman, to deliver prayers at the graduation, which was held at the school. Clergy invited to participate in the graduation ceremonies were given a pamphlet, Guidelines for Civic Occasions, prepared by the National Conference of Christians and Jews. These guidelines recommend that public

4 prayers at nonsectarian civic ceremonies be composed with inclusiveness and sensitivity, and note that [p]rayer of any kind may be inappropriate on some civic occasions. Principal Lee gave Rabbi Gutterman this pamphlet and advised him the invocation and benediction should be nonsectarian (not associated with a particular religious denomination). The following was Rabbi Gutterman s 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 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. The following was his benediction: O 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. Both parties agreed that the school district does not require attendance at graduation exercises as a condition for receipt of a diploma. The section of the prayer, To do justly, to love mercy, to walk humbly, comes from the Bible (Micah 6:8). 2. Lower Court Decisions The first court to hear this matter was the District Court. Deborah s father, Daniel, sought a temporary restraining order to prohibit school officials from including the prayers in the ceremony. The District Court denied the restraining order.

5 Deborah and her family attended the ceremony, and the prayers were recited. Afterwards, Daniel sought a permanent injunction to bar Providence public school officials from inviting clergy to deliver prayers at future graduations. The District Court decided that the practice of including invocations and benedictions in public school graduations violated the Establishment Clause of the First Amendment; therefore, the school district must discontinue its practice of invocations and benedictions offered by clergy at school graduations. The court used the three-part Lemon Establishment Clause test (see case details below), which requires any governmental practice to: 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. The District Court believed that the school s actions violated the second part of that test, because the school created an identification of the state with a religion, or with religion in general and endorse[d] religion in general. The school principal, Mr. Lee, appealed to the United States Court of Appeals for the First Circuit, which agreed with the District Court ruling ruling against the school district. Mr. Lee petitioned the United States Supreme Court to hear this case, and they granted certiorari (meaning, they would decide the case). Mr. Lee is the Petitioner, and Mr. Weisman, the Respondent, at the Supreme Court appeal. 3. Elements of the Law/Case Law First Amendment to the United States Constitution The language from the First Amendment that applies to cases involving religion: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Fourteenth Amendment to the United States Constitution Originally, the First Amendment applied only to laws enacted by Congress. However, beginning with Gitlow v. New York (1925), the Supreme Court applied the First Amendment to each state, through the Due Process clause of the Fourteenth Amendment. Therefore, state laws must also withstand constitutional scrutiny from the perspective of the federal and state Constitutions.

6 Everson v. Board of Education of Ewing, 330 U.S. 1 (1947) This was the first Supreme Court case involving a challenge to state law under the Establishment Clause of the First Amendment. This case invoked Jefferson s wall of separation between church and State. In this case, the Supreme Court ruled that: 1. Neither a state nor the federal government can set up a church. 2. Government can not pass laws which aid one religion, aid all religions, or prefer one religion over another. 3. Government can not 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. 4. No one may be punished for entertaining or professing religious beliefs or disbeliefs, or for church attendance or non-attendance. 5. No tax in any amount can support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion. 6. Government can not, openly or secretly, participate in the affairs of any religious organizations or groups, or vice versa. Engel v. Vitale, 370 U.S. 421 (1962) In this case, a group of parents sued a New York public school district for requiring students to begin each day by reciting a nondenominational prayer written by the New York State Board of Regents. This was the prayer: Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. While both the state court and the New York Court of Appeals allowed the prayer to be recited, the Supreme Court ruled that requiring students to recite the prayer was unconstitutional because it violated the Establishment Clause. This was the first time the Supreme Court considered the constitutionality of prayer in public school. Although the prayer was denominationally neutral and its observance on the part of the students [was] voluntary, the Court found that it used the power or prestige of the government to control, support or influence the religious beliefs and practices of the students. The Court said the Establishment Clause was violated whether or not there is any showing of direct governmental compulsion whether those laws operate directly to coerce non-observing individuals or not. Therefore, neither the voluntary nature of school prayers nor their nondenominational character protected them from violating the Establishment Clause.

7 School District of Abington v. Schempp and Murray v. Curlett, 374 U.S. 203 (1963) These are companion cases, which refers to a group of two or more cases which are consolidated by an appellate court and decided together because they have common legal issues. In some instances, companion cases with similar but not identical fact patterns are decided with different outcomes, allowing the court to establish distinctions. Both of these cases involved the reading of Bible passages prior to class in public schools. Schempp involved a Pennsylvania law that stated that at least ten verses from the Bible must be read, without comment, at the opening of each school day. However, any child could be excused from the Bible reading with written request of the parent/guardian. A federal district court disallowed this practice. Murray involved a requirement by the Baltimore school board that the Lord s Prayer be recited at the beginning of the school day. This practice was upheld by both a state court and the Maryland Court of Appeals. The Supreme Court ruled against allowing the reciting or reading of the Bible verses and the Lord s Prayer. The decision was 8-1 and the Court concluded: [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. Because the schools opening exercises were government-sponsored religious activities, the Court found that the primary effect was the advancement of religion, and therefore, violated the Establishment Clause. To withstand a challenge to the Establishment Clause, there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. For this reason, comparative study or religion in public schools is allowed, because it has a secular purpose and neither advances nor inhibits religion. To violate the Free Exercise Clause, it is only necessary to show a coercive effect of the law. The fact that either may be just minor encroachments on the First Amendment is irrelevant.

8 Epperson v. Arkansas, 393 U.S. 97 (1968) In this case, a teacher challenged the constitutionality of an Arkansas statute prohibiting the teaching of evolution. The Supreme Court ruled that the law violated both the Establishment and the Free Exercise Clauses because the state may not tailor the education of students to the principles of any religious group. The law was not neutral because it did not prevent all discussions of the origin of man. The law prohibited the teaching of evolution because it is deemed to conflict with a particular religious doctrine (a particular interpretation of the Book of Genesis) by a particular religious group. In this consideration of whether religious activity in public schools violated the Establishment Clause, the Court reiterated the principle that government may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. If [the purpose or primary effect] is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power. Finding that the Arkansas law aided religion by preventing the teaching of evolution, the Court disallowed it. Lemon v. Kurtzman, Earley v. DiCenso, Robinson v. DiCenso, 403 U.S. 602 (1971) This case refers to three cases from Pennsylvania and Rhode Island that involved public assistance to private schools (some religious). They included paying the salaries of teachers in religious schools, assisting the purchasing of textbooks and other teaching supplies, and paying 15% of the salaries of private school teachers. A federal court upheld the Pennsylvania statute, while a district court ruled the Rhode Island law unconstitutional. (The Supreme Court often grants certiorari because of conflicting lower court law, as in this case.) The Supreme Court established the Lemon test based upon previous decisions, which means that laws: 1. must have a secular purpose, 2. the principal or primary effect must neither advance nor inhibit religion, and 3. must not foster an excessive entanglement with religion. The Supreme Court ruled unanimously that the laws violated the third criteria, and therefore, violated the Establishment Clause and were unconstitutional. The teachers, whose salaries were being partially paid by the State and who received assistance with purchasing textbooks and teaching supplies, were religious agents working under the control of religious officials, creating an inherent conflict that would require the state to become entangled with the

9 church. Because the statutes did not meet the Lemon test, they were invalidated as unconstitutional. Marsh v. Chambers, 463 U.S. 783 (1983) Chambers was a member of the Nebraska state legislature who objected to the fact that a clergyman who opened each session with a prayer was paid with public funds. Two lower courts found this practice unconstitutional, although one objected to the use of public money to pay the clergy, while the other objected to the prayer being offered. By a 6-3 vote, the Supreme Court permitted the practice of opening the legislative session with a prayer given by a chaplain paid with state funds. The Court relied upon the use of prayer in our nation s history and tradition and the intent of the framers of the Constitution, as well as the fact that the Nebraska legislature s practice is consistent with the framers of the Constitution s use of chaplains. The Supreme Court and Congress have traditionally begun their sessions with prayers, as well. Individual states do not have to abide by more stringent First Amendment limits than the federal government. Because of the principles upon which the nation was founded, religion has become part of the fabric of society. The offering of prayer is a tolerable acknowledgement of beliefs widely held among the people of our country. Paying for a chaplain from public funds was done by the Continental Congress at the founding of our country. There has not been any adverse effect shown from involving prayer with governmental activity. This practice had become more a communication of shared values than a religious practice. The Establishment Clause does not always bar a state from regulating conduct, simply because it is compatible with religious concerns. However, some argue this decision was very narrow, with no relevance to school prayer cases. Wallace v. Jaffree, 472 U.S. 38 (1985) An Alabama law required that each school day in all public schools begin with a moment of silent meditation or voluntary prayer. A student s parent sued, claiming that the law violated the Establishment Clause by compelling students to pray, and exposed students to religious indoctrination. The Supreme Court struck down the law as unconstitutional in a 6-3 vote. The Court decided the important issue was whether the law was instituted for a religious purpose. According to the state legislator who wrote the bill, the or voluntary prayer clause was included for a religious purpose. Alabama already

10 had another law that allowed school days to begin with a moment of silent meditation. This new law expanded the law by giving it a religious purpose. The intentions of the legislature demonstrated its unconstitutionality. The three justices who disagreed with the decision believed this was not endorsed prayer because it was voluntary, and differentiating the two laws because this one includes the word prayer shows a hostility towards religion instead of neutrality. Stein v. Plainwell Community Schools, 822 F. 2d 1406 (1987) This is a case decided by the Court of Appeals for the 6 th Circuit, which decided that invocations and benedictions at public school graduations may be constitutional if they preserve the principle of equal liberty of conscience and do not go beyond the American civil religion or proselytize. Relying on the Marsh case, it held that invocations and benedictions at public school graduations are not always unconstitutional. The Plainwell Community Schools and the Portage Public Schools are public school districts near Kalamazoo, Michigan. At both graduation ceremonies, which are both held at outdoor athletic facilities in the evening, invocations and benedictions are included. Attendance at the graduations is voluntary and one need not attend to receive a diploma. At the Plainwell graduation, the invocation and benediction are delivered by two student volunteers chosen from a group of honor students. The students determine the prayers content. At the Portage graduation, the content of the ceremony is organized and developed by the graduating seniors. They have chosen, for at least fifteen years, to include in the ceremony an invocation and benediction given by local clergy of various Christian denominations chosen by the senior class representatives. This Court of Appeals for the 6 th Circuit determined that the graduation ceremonies here were more analogous to legislative and judicial sessions than classroom sessions. There is less opportunity for religious indoctrination, peer pressure or coercion, which is one of the differences the Supreme Court found in Marsh and the school prayer cases. Also, the prayers at graduations are generally of a more ceremonial nature than classroom prayers and take place in a different environment. However, in this case, the Court of Appeals found that the language of the prayers in this case are unacceptable because they symbolically place the

11 government s seal of approval on one religious view, the Christian view. Some expressly invoke the name of Jesus as the Savior, and are not the type of prayers used in public legislative and judicial sessions described in Marsh. For that specific reason, the prayers were found to be unconstitutional when applying the Supreme Court s reasoning in the Marsh case, while leaving open the possibility of constitutional prayers at graduation ceremonies.

12 Teacher Case Materials I. Student Roles and Preparation II. Sequence of Events III. Case Decision and Explanatory Materials I. Student Roles There are the following roles in this case: Petitioner Attorney, Respondent Attorney, and Justices. The Supreme Court has nine Justices. You may also have nine Justices, or any odd number. Designate one Justice as the Chief Justice. That person will announce the decision at the end of the oral argument. You may choose to allow two or more attorneys to work together on each side of the case coming up with arguments and writing the presentation. In addition, you could allow two attorneys to present the case. Even though this would not occur in the Supreme Court arguments, it does allow for greater participation. Student Preparation To help students prepare for this case after they are assigned roles: 1. Prior to or when handing out the case, explain or review any terms with which your students are not familiar. 2. The students should read through the facts and what has happened in the lower courts, as well as the summaries of case law. 3. The attorneys should read through the applicable case law. It may be helpful to use two colored markers, and use one color to mark aspects of the cases that help their side, and another color to mark aspects that are detrimental to their side. Remind the attorneys that they will need to explain how the cases that are detrimental to their side do not apply to the case at hand. 4. The justices should also read the materials to be familiar with the case, and jot down any questions they wish to ask the attorneys during oral argument. 5. Explain that the Petitioner s attorney will explain why the lower court(s) decision should be reversed, followed by the Respondent s attorney, who will explain why the lower court(s) decided correctly.

13 6. Explain that at any point during the attorneys arguments, any justice can interrupt and seek clarification about a point, or ask a question. The Issue of Briefs In the U.S. Supreme Court, the Petitioner and Respondent submit briefs explaining and arguing the issue, which the Justices read before the oral arguments. In that way, the Justices have knowledge of the facts of the case, what happened in the lower courts, and the cases on which each side relies. The Justices are able to formulate intelligent questions to ask during oral argument. You may choose to have the student attorneys (or rest of the class) write briefs using the case materials provided. That will help prepare the student Justices for their roles. You will need to allow enough time for the students to produce these briefs. However, if you do not have the time or inclination to have students write briefs, just make sure the Justices read the case materials carefully and are able to come up with a question or two prior to oral arguments. II. Sequence of Events: Supreme Court Appellate Case Make sure students understand the process and that it is very similar to but not exactly like the actual Supreme Court sequence: A. Court called to session. B. Petitioner s Oral Argument C. Respondent s Oral Argument D. Petitioner Rebuttal (if requested) E. Justices Deliberation and Announcement of Decision As part of the Court being called to session, you will want to have the Chief Justice provide a brief synopsis of the issue in the case. This is done to give the spectators watching your mock trial an overview so they will better understand what is happening. You will want to preview the synopsis ahead of time, to make sure that it will help the audience follow along. After the Court is called to session, each attorney has half an hour to argue the merits of his case (for an hour total). The Justices may interrupt at any time and ask clarifying questions or challenge the attorney about some aspect of his argument. In your mock trial, you will probably not use half an hour for each side! (Although if you can/do more power to you and your class!)

14 The Petitioner waits to be acknowledged by the Chief Justice. When he is, he begins with Mr. Chief Justice and may it please the Court and begins his argument. When answering other Justices, refer to them as Your Honor. Attorneys should refer to the Chief Justice as Mr. Chief Justice. (Unless your Chief Justice is a female.) Whatever the amount of time you determine, let the attorneys know that they do not need to use all of that time. If the attorney has successfully made his most important points and has answered the Justices questions thoroughly and persuasively, it is better to end than to perhaps weaken his argument. In the U.S. Supreme Court, there is a lighting system to let attorneys know when they are getting close to the end of the time allotted. For your purposes, I would suggest having someone within eyesight of the attorneys with a simple sign that says 5 Minutes to alert them to the time ending shortly. You may want to have a red stop sign to indicate the attorney must stop. Depending on how much time you decide to allot, you can adjust the sign system accordingly. When the Petitioner sits down, or the time has run out, the Respondent goes to the podium and waits to be acknowledged. He will begin his argument with Mr. Chief Justice and may it please the Court. and proceed with his argument. The process of questioning and timing are the same. During the oral arguments, students can use notes, but should seek to have them as unobtrusive as possible. Justices can interrupt the oral arguments at any time. The attorneys should stop speaking as soon as a Justice begins speaking, and should not interrupt a Justice. The attorneys must be very clear in their minds about what the most important points to make are and then be sure to make them, even if they must lay aside fairly important points for the sake of time. Warn them that it will challenging to answer questions and keep in mind which points to stress. Attorneys will likely refer to a previous Supreme Court ruling in their argument. They may use a majority opinion, a concurring opinion or a dissent, and they should indicate which type of opinion they are using. As an example, they may say, In the case of ABC v. Commonwealth, Justice Stephen s dissent stated.

15 The Supreme Court grants writs of certiorari on a particular legal issue. An appeal is not the time to argue the facts of a case you are arguing how the law should be applied to those particular facts. At the end of the arguments, the Chief Justice says, The case is submitted. The Justices will need time to deliberate and come to a decision. Once a decision is reached, the Chief Justice should announce, A decision has been reached. The Chief Justice will announce the Court s decision with a brief explanation. This should include how many Justices were in favor of the decision, and if any were in dissent. You may choose to allow questions of the Justices, whether from the attorneys or the audience. III. Case Decision and Explanatory Materials Case Decision: The Supreme Court affirmed the lower courts decisions, meaning that it decided these graduation prayers were unconstitutional. Importance of this Case The Supreme Court extended the prohibition of public school prayer to graduation ceremonies. Appellate Case You may choose to use the following language (or adapt it) to welcome family and friends to the mock trial class, and increase their understanding of the class and the case they will hear argued. Welcome to our mock trial class, which provides an introduction to our court system. We began by learning some legal terms and concepts, about our country s Biblical foundation and a very brief legal history, about some different types of courts as well as different types of cases, and then a bit about writing persuasive arguments. And all of that leads to today, where the class will get to use some of their newfound knowledge by presenting a mock trial. The issue on appeal in this case is whether prayers as part of an official public school graduation ceremony are consistent with the Religion Clauses of the First Amendment (which the Fourteenth Amendment makes applicable to the states and their school districts). For an appellate case, the attorneys argue from previous case law and facts specific to the case at hand. The attorneys were given brief descriptions of court decisions that are related to this case.

16 The Supreme Court has nine Justices hearing and deciding cases. In our simulation, we will have Justices. Our attorneys will present oral arguments to the Justices, in much the same way attorneys do before the U.S. Supreme Court. Mr. Lee s attorney, as the Petitioner, will present his oral arguments first, with Mr. Weisman s attorney, as the Respondent, following. After the close of oral arguments, you may choose to say: Now the Justices will take a brief time to discuss whether they believe that the prayers said at the public school graduation violate the Establishment Clause. Have the Justices complete the form on the following page:

17 In the case of Lee v. Weisman, the Justices find that these public school graduation prayers DO DO NOT violate the Establishment Clause. Reasoning for Opinion (What was most persuasive in your decision?): If there is a DISSENT, what fact, case or argument was most persuasive?

18 Post-Decision Explanation Share the following information with the participants and audience of the mock trial, to help them better understand the Supreme Court s reasoning. In the actual Supreme Court case, the Justices ruled that these prayers DO violate the Establishment Clause. The Supreme Court affirmed the lower courts decisions, meaning that it decided these graduation prayers were unconstitutional. The importance of this ruling is that it extended the prohibition of public school prayer to graduation ceremonies. In the written decision of this case, the Justices of the Supreme Court placed a lot of importance in the idea that while attendance at the graduation is not required to receive a diploma, students who object to the prayers are in a fair and real sense obligated to attend and participate. The government involvement with religious activity was seen as pervasive. They emphasized that the principal advised the rabbi that his prayers should be nonsectarian thereby directing and controlling the content of the prayers, from their perspective. There was also a great deal of emphasis on the peer pressure the Court believed the students would feel to rise for and remain silent during the prayer. They felt such actions could properly be construed as accepting the message. The Justices stated that 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 to be an attempt to employ the machinery of the State to enforce a religious belief. The Justices did not find the argument that attendance at the graduation ceremony is voluntary persuasive. While a student could elect not to attend the graduation and still receive a diploma, they stated that everyone knows that in our society and in our culture high school graduation is one of life s most significant occasions. The Court stated that overall, the government has placed its official stamp of approval on the prayers. The government actor (school principal) selects the member of the clergy to deliver the prayers, has the prayer delivered at a public school event that is planned, supervised and given by school officials, and pressure students to attend and participate in the prayer, there is no doubt that government is advancing and promoting religion

19 Keeping a strict separation between church and state protects not only the state, but perhaps more importantly, the church. If the government favors a particular religion, even the favored religion may be tainted. The First Amendment embraces the right to select any religious faith, or none at all. Finally, the Court stated that graduation prayers are different than Presidential proclamations and similar acknowledgements of religion in public life, which are rarely noticed, easily ignored, conveyed over an impersonal medium and directed at no one in particular. Graduation prayers are delivered personally and directed to a captive audience, and not easily ignored. Now, on the other hand, there were a minority of Justices (4 of 9) that disagreed with the majority and wrote a dissenting opinion. Dissenting opinions are important. As Justices on the Supreme Court change, at some point the Justices in the minority may become the majority, and their reasoning may one day become the law of the land. The dissenting opinion s primary argument was that the Establishment Clause must be construed in light of history, specifically, the governmental accommodation, acknowledgement and support for religion that is an accepted part of our political and cultural heritage. The Lemon test should not be used as the only defining test of what is permissible under the Establishment Clause because it would invalidate longstanding traditions. Non-sectarian prayer at public gatherings and celebrations is a tradition that ought to be protected. The dissenting opinion was also very critical of the idea of using a test of psychological coercion, because it is too pliable and expandable a test. They argued that one needs to look at the Framers intent when determining if something is constitutional. The history and tradition of our nation are replete with public ceremonies featuring prayers of thanksgiving and petition and mentions of God, from the Declaration of Independence to George Washington praying as his first official act as President. And the other branches of the Federal Government also have a long-established practice of prayer at public events. Both Congressional and Supreme Court sessions have opened with a chaplain's prayer or invocation to God since they first began. At public school graduation ceremonies, students are not psychologically coerced to bow their heads, place their hands in a prayer position, pay attention

20 to the prayers, utter "Amen," or in fact pray. They are asked only to stand or maintain respectful silence. To claim 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 joined in the prayers is nothing short of ludicrous, according to the dissent. It states that surely "our social conventions 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. Maintaining respect for the religious observances of others is a basic civic virtue that government (including the public schools) can and should cultivate. One Supreme Court case ruled that a public school student could not be compelled to recite the Pledge of Allegiance; but the student could be compelled to observe respectful silence indeed, even to stand in respectful silence when those who wished to recite it did so. Also, the dissent argued that the school did not exercise a great deal of control over the Rabbi and the prayers. All the principals in that school district did were to invite clergy to deliver invocations and benedictions at graduations, provide them with a two-page pamphlet giving general advice on inclusive prayer for civic occasions, and advise clergy that prayers at graduation should be nonsectarian. Finally, the dissent draws a distinction between coercion of a subtle type and the coercion by force of law that occurred in times when there was a state church, and attendance and financial support were required. There is a huge difference between what may be perceived as psychological coercion and governmental requirements that are backed by penalties. Overall, the longstanding American tradition of prayer at official ceremonies makes it clear that the Establishment Clause does not forbid the government to accommodate religious beliefs and practices. And as a public policy matter, it is beneficial to our country to foster not just toleration of other religions among its people, but also an affection for them. To deprive our society of that important mechanism to bring us together, in order to spare a nonbeliever the minimal inconvenience of standing or even sitting in respectful nonparticipation, the dissenting Justices believed is senseless as public policy. Finally, the dissent noted that as a practical matter, there is a manner of circumventing (getting around) the Court s ruling: the school district can simply announce (or write in the graduation materials) that while all are asked to rise

21 for the invocation and benediction, no one is compelled to join in, nor will their rising assume that they support the prayer. It s always interesting to see how the students arguments and reasoning mirrors the Supreme Court, and how it differs. The following are arguments that can be used by the Petitioner and Respondent attorneys. First, allow the attorneys to come up with their own arguments. But if they are having difficulty thinking of arguments, then provide them one or two examples to spark their creativity. For younger students or those struggling to understand the issues involved, you may provide them as much assistance as you deem necessary. These arguments are primarily taken from the Supreme Court decision (including the dissent), although other arguments may be included. Arguments that School Graduation Prayers Violate the Constitution (not in any particular order): 1. While attendance is not required at the graduation ceremony, students who object to the prayers are in a fair and real sense obligated to attend and participate. While a student could elect not to attend the graduation and still receive a diploma, everyone knows that in our society and in our culture high school graduation is one of life s most significant occasions, therefore, not attending would have its own very negative consequences for the student. Not being able to attend one s graduation would have negative consequences for the student, and could be easily avoided. 2. The First Amendment guarantees that the government can not coerce anyone to participate in religion Religious beliefs and expression are too precious to be entangled with the State in any way. What begins as tolerance may lead to indoctrination and coercion. While most believers may see this as nothing more than a reasonable request to respect their religious practice, to a nonbeliever it may appear that the government authorizes this religious belief.

22 The fullest guarantee of religious freedom is that there is no coercion, no matter how small. Even the smallest effort takes away from freedom. The First Amendment protects the right to choose any religion, or none at all. Churches are protected by a strong separation from government. Any perceived connection between church and state weakens true freedom of religion. Governmental practices that do not favor one religion or denomination over another, but aid all religions, are still unconstitutional. In Engel, public schools were not allowed readings of any prayer, even if it is denominationally neutral. In Wallace, a moment of silence or voluntary prayer was unconstitutional even though it did not advance any particular denomination. 3. The government involvement with religious activity is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school. A school official decided that an invocation and a benediction should be given. From a Constitutional perspective, it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, provided him with a copy of the Guidelines for Civic Occasions, and advised him that his prayers should be nonsectarian directing and controlling the content of the prayers. The fact that the Rabbi might not be invited back if he ignored the instructions might lead to the school official s control over the prayers. In effect, the school official composed official prayers. Praying is a religious activity. The government is advancing and promoting religion. 4. Peer Pressure There would be peer pressure to rise for and remain silent during the prayer. Even if the student is merely being respectful, his action might be construed as agreeing with the message.

23 Teachers and principals have some level of control over the students actions. Those objecting to the prayer should not be placed in the position of having to protest. Psychological research demonstrates that adolescents are susceptible to peer pressure. 5. History is not fully on the other side of this case. The religion clauses of the Constitution were hotly debated and there is not one view. Therefore, it is difficult to declare the framers intent. President Jefferson refused to issue Thanksgiving proclamations. President Madison refused to call for days of thanksgiving and prayer, until the War of Graduation prayers are different than Presidential proclamations and other acknowledgement of religion in public life. Graduation prayers are delivered personally to a captive audience and not easily avoided unlike other acknowledgements. Arguments that the Prayer Does Not Violate the Constitution (not in any particular order): 1. The Establishment Clause must be construed in light of history and the framers intent. Governmental accommodation, acknowledgement and support for religion are accepted aspects of our political and cultural heritage. Graduation prayers are different than Presidential proclamations and similar moments. There is much evidence that the framers did not consider that prayers such as this would violate the Establishment Clause. Our history is full of public ceremonies featuring prayers of thanksgiving and petition. The Declaration of Independence appeals to the Supreme Judge of the world. George Washington s first official act as President was to pray.

24 Each president, from the very beginning of our nation, has sworn his oath of office on a Bible. The day after the First Amendment was proposed, Congress asked President Washington to proclaim a day of thanksgiving and prayer. Almost every president has issued Thanksgiving proclamations. The other branches of government (legislative and judicial) also have long-standing practices of prayer. There are many, many examples of religious references in public life. 2. The Lemon test should not be used as the only test of what is permissible under the Establishment Clause because it would invalidate longstanding traditions. Nonsectarian prayers at public gatherings is a tradition worth protecting. There is a long tradition of nonsectarian prayers at public celebrations, including graduations. 3. Using a test of psychological coercion in cases such as this is just too pliable and infinitely expandable. Constitutional issues need to be decided based on historic practices of our people, and not rest on changeable philosophical theories. Graduation prayer cases usually involve students graduating from high school. It is unlikely that they would be vulnerable to coercion by the government in accepting its appearance of religion and they should not be treated like little children. Graduation prayers do not in any way relate to the type of coercion our founders were concerned about: requiring attendance at the state church, civil penalties for disobedience, using tax money to build and repair churches and pay ministers, for example. True coercion also involved the force of law and threat of penalty clearly not at issue in this case. 4. There is no great damage done to the student who remains silent during a prayer in which he does not believe. There is no coercion to bow their heads, place their hands in a prayer position, say Amen, actually pray, or even pay

25 attention. They are only asked to stand or remain respectfully silent. A student who simply remains respectfully silent during these prayers would not necessarily be perceived as believing in the prayers. One Justice noted that surely our society has not coarsened to the extent 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. The Supreme Court decided in another case that public school students could not be required to recite the Pledge of Allegiance, but could be required to be silent and even stand. 5. There is also a fundamental virtue in learning to demonstrate respect for the religious observances of others. Public schools can and should cultivate this virtue. To miss this due to a small discomfort is not good public policy. 6. The school did not exercise a great deal of control over the Rabbi and the prayers. The principals invited clergy to deliver the invocations and benedictions, as was the custom. A two-page pamphlet, prepared by the National Conference of Christians and Jews, was provided to the Rabbi for general guidance. The Rabbi was advised that his prayers should be nonsectarian. There is nothing in the record alleging that school officials drafted, edited, screened or censored the Rabbi s prayers. 7. The other school prayer cases differ distinctly from this one. Students are required to attend school (or fit an exemption, such as homeschooling). Students are not legally compelled to attend graduation exercises. The Court distinguished between younger, more impressionable students and those graduating. The Court also distinguished between the influence teachers have over students, compared to a one-time graduation event. Parents are not present daily in their children s classrooms, but are present and available at graduation events.

26 8. Finally, as a practical matter, there is a relatively simple way to circumvent a ruling from the Court prohibiting graduation prayers such as this. The school district can simply announce (or write in the graduation materials) that while all are asked to rise for the invocation and benediction, no one is compelled to join in, nor will their rising suggest that they support the prayer.

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