# Sands v. Morongo Unified School District

> California Supreme Court · May 6, 1991 · 53 Cal. 3d 863

URL: https://www.frixlaw.com/law-library/cases/1196385

## Case

- **Full name:** JAMES SANDS Et Al., Plaintiffs and Respondents, v. MORONGO UNIFIED SCHOOL DISTRICT Et Al., Defendants and Appellants
- **Court:** California Supreme Court
- **Decided:** May 6, 1991
- **Citations:** 53 Cal. 3d 863; 281 Cal. Rptr. 34; 91 Daily Journal DAR 5389; 809 P.2d 809; 91 Cal. Daily Op. Serv. 3328; 1991 Cal. LEXIS 1724
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Kennard, Lucas, Mosk, Arabian, Panelli, Baxter
- **Cited by:** 64 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1196385

## How later opinions describe it (automated extraction)

- stating that the No Preference Clause “is without parallel in the federal Constitution”

## Opinion text

53 Cal.3d 863 (1991)
809 P.2d 809
281 Cal. Rptr. 34
JAMES SANDS et al., Plaintiffs and Respondents,
v.
MORONGO UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants.
Docket No. S012721.
Supreme Court of California.
May 6, 1991.
*867 COUNSEL
Biddle & Hamilton, Christian M. Keiner and Terri A. DeMitchell for Defendants and Appellants.
Robert K. Skolrood, Douglas W. Davis, William C. Wood, Jr., Kronick, Moskovitz, Tiedemann & Girard and Jayne G. Benz as Amici Curiae on behalf of Defendants and Appellants.
Carol A. Sobel, Mark D. Rosenbaum and Paul L. Hoffman for Plaintiffs and Respondents.
Douglas E. Mirell and Daron L. Tooch as Amici Curiae on behalf of Plaintiffs and Respondents.
OPINION
KENNARD, J.
In this case we hold that religious invocations and benedictions at public high school graduation ceremonies are constitutionally impermissible. Our review of applicable precedent convinces us that this practice violates the guarantees found in the United States and California Constitutions that religion and government shall remain separate.
Ours is a nation composed of people of many different races and faiths. Some are Native Americans, many of whom adhere to beliefs formed here over many centuries; others are immigrants, or the descendants of *868 immigrants, many of whom came here to escape religious persecution. The historical fact of our diverse origins and beliefs is a vital part of our national heritage and central to the meaning of the establishment and free exercise clauses of the First Amendment to the United States Constitution. The establishment clause reflects and implements the fundamental wisdom that freedom of religion flourishes only when government observes strict adherence to the principle of separation of religion and state authority. Government-sponsored religious invocations and benedictions at public school graduation ceremonies contravene the fundamental principle of governmental neutrality and abstention in matters affecting religious beliefs and practices.
I. FACTS
Defendant Morongo Unified School District (the District) operates four high schools: Yucca Valley High School, Twenty-Nine Palms High School, Sky High School, and Monument High School. Opening invocations and closing benedictions have been included in graduation ceremonies at Yucca Valley High School since 1968, at Twenty-Nine Palms High School since 1937, at Sky High School since 1977, and at Monument High School since 1978.
At Yucca Valley High School, the president of the graduating class, in consultation with the vice-principal, selects speakers to conduct the invocation and benediction. In 1985, a Protestant minister delivered the invocation, and a faculty member gave the benediction. In 1986, a teacher delivered the benediction, and a Protestant minister selected by the vice-principal gave the invocation.
At Twenty-Nine Palms High School, a student committee initially selects the speakers for the invocation and benediction. In 1985, a Presbyterian minister delivered the invocation, and a Catholic priest gave the benediction.
The record does not reveal how graduation speakers are initially selected at either Sky High School or Monument High School. At Monument High School's 1985 graduation ceremony, a Protestant minister delivered both the invocation and the benediction. At Sky High School, the same Methodist pastor has given the invocation and the benediction every year since that school's first graduation ceremony in 1977.
As the District's counsel acknowledged at oral argument, District officials give final approval to the selection of those who deliver the graduation prayers. Apart from a single nonreligious benediction at one high *869 school in one year and a religious benediction at the same school the next year, every invocation or benediction in this case has been delivered by either a Protestant minister or a Catholic priest.
With the exception of a benediction by a teacher at Yucca Valley High School in 1985, all the invocations and benedictions at issue had explicitly religious content. For example, the benediction at Yucca Valley High School in 1986 was as follows: "Will the audience please stand and join us in prayer. [¶] Dear Father, we thank You for these graduates who have meant so much to us. We thank You for their energy, their enthusiasm, their sense of humor and their sense for life. May the years never diminish these traits. [¶] We ask Your guidance as these graduates try to meet the many challenges of their future years. Grant them the strength to meet these challenges with courage, confidence and faith. [¶] We ask Your blessings so that their lives will brim with happiness and good health. And that each one experiences a life rich in friendship and rich in love. [¶] Finally, we ask these young men and women, mature in years, may they forever remain young at heart and free in spirit. We ask for these in Your name, amen."
Similarly, the invocation given that year at Yucca Valley High School concluded with these words: "Heavenly father, I thank you for the privilege it is to see these graduates going forth receiving their diplomas this evening. To celebrate this time, I pray that you would give them that blessing, that confidence, courage, vision, hope, peace and gladness, and looking forward to the days to come, the years to come being confident of what they have already been able to do in receiving this diploma. [¶] Now I pray your blessing upon them, in the name of our Lord, amen."
Plaintiffs Jim Sands and Jean Bertolette are taxpayers residing within the District. They object to the inclusion of religious invocations, benedictions, or any other religious ritual at public school graduation ceremonies in the District. After unsuccessful efforts to persuade District officials to cease the practice of including prayers at graduations, in June 1986 they brought this action for declaratory and injunctive relief prohibiting the District and its officials from including religious invocations at public school ceremonies. They proceeded under Code of Civil Procedure section 526a, which authorizes taxpayers' actions against local public entities to enjoin the unlawful expenditure of public funds. It is not disputed that the graduation ceremonies are conducted on public school property, are publicly funded, and are planned by public school administrators who also participate in the ceremonies in their official capacities.
In July 1987, while this case was pending in the trial court, the Court of Appeal held in Bennett v. Livermore Unified School Dist. (1987) 193 *870 Cal. App.3d 1012 [ 238 Cal. Rptr. 819 ] that the inclusion of religious invocations at high school graduation ceremonies violated both the state and federal Constitutions. After the decision in Bennett, the parties in this case made cross-motions for summary judgment. The trial court granted plaintiffs' motion and denied the District's motion. The court entered judgment prohibiting the District and its officials from conducting or attempting to conduct religious invocations and benedictions at any public school ceremonies in the District.
The District appealed. The Court of Appeal disagreed with the Bennett decision and reversed the trial court's judgment. We granted review to resolve the conflict on this constitutional question.
II. DISCUSSION
A. The Establishment Clause of the United States Constitution
1. General Principles
(1) The federal Constitution mandates that government "make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." (U.S. Const., 1st Amend.) The former provision, known as the establishment clause, forbids government affiliation with religious beliefs and institutions. The separation that the establishment clause commands between religion and government manifests and promotes respect for religious pluralism and should not be perceived as hostility or indifference to religion. As the United States Supreme Court has remarked, "No misperception could be more antithetical to the values embodied in the Establishment Clause." ( County of Allegheny v. American Civil Liberties U. (1989) 492 U.S. 573, 610 [ 106 L.Ed.2d 472, 505 , 109 S.Ct. 3086, 3110 ] (hereafter County of Allegheny ).) Indeed, the establishment and free exercise clauses are complementary because scrupulous government neutrality in religious matters enhances religious freedom. As the high court has explained, "[t]he Constitution mandates that the government remain secular, rather than affiliating itself with religious beliefs or institutions, precisely in order to avoid discriminating among citizens on the basis of their religious faiths." ( Ibid. [ 106 L.Ed.2d 472, 505 , 109 S.Ct. 3086, 3110 ].)
In Everson v. Board of Education (1947) 330 U.S. 1, 15-16 [91 L.Ed.711, 723, 67 S.Ct. 504 , 168 A.L.R. 1392 ], the United States Supreme Court's first modern case interpreting the establishment clause, the court enunciated these principles: "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 *871 religions, or prefer one religion over another. Neither can force nor influence a person to go to or 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 organizations or groups and vice versa. " [1]
(2a) Sixteen years later, in Abington School Dist. v. Schempp (1963) 374 U.S. 203, 222 [ 10 L.Ed.2d 844, 858 , 83 S.Ct. 1560 ], the court synthesized the teachings of its cases into two tests: "[T]o withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." The court thereafter consistently applied those tests and, in Walz v. Tax Commission (1970) 397 U.S. 664, 674 [ 25 L.Ed.2d 697, 704 , 90 S.Ct. 1409 ], it developed a third test: the law or government action must not foster "an excessive government entanglement with religion."
One year later, in Lemon v. Kurtzman (1971) 403 U.S. 602, 612-613 [ 29 L.Ed.2d 745, 755-756 , 91 S.Ct. 2105 ] (hereafter Lemon ), the court made clear that these three tests, which have since become known collectively as the Lemon test, were to be applied consistently in establishment clause cases. In 1987, the high court observed that "[t]he Lemon test has been applied in all cases since its adoption in 1971, except in Marsh v. Chambers . ..." [2] ( Edwards v. Aguillard (1987) 482 U.S. 578, 583, fn. 4 [ 96 L.Ed.2d 510, 518 , 107 S.Ct. 2573 ].) Since it made this observation, the high court has applied the Lemon test in every establishment clause case it has decided. (See, e.g., Board of Education v. Mergens (1990) 496 U.S. 226 [ 110 L.Ed.2d 191 , 110 S.Ct. 2356 ]; Jimmy Swaggart Ministries v. Board of Equalization (1990) 493 U.S. 378 [ 107 L.Ed.2d 796 , 110 S.Ct. 688 ]; County of Allegheny, supra, 492 U.S. 573 ; Texas Monthly, Inc. v. Bullock (1989) 489 U.S. 1 [ 103 L.Ed.2d 1 , 109 S.Ct. 890 ]; Bowen v. Kendrick (1988) 487 U.S. 589 [ 101 L.Ed.2d 520 , 108 S.Ct. 2562 ].)
In County of Allegheny, supra, 492 U.S. 573 , Justice Kennedy, in a separate opinion, departed from the court's usual application of the Lemon test, *872 arguing that there should be a "flexible accommodation" of religion, and that the court should look to two principles in deciding establishment clause cases: first, government may not "coerce anyone to support or participate in any religion," and second, government may not "give direct benefits to a religion in such a degree that it in fact `establishes a [state] religion or religious faith, or tends to do so.'" ( 492 U.S. at p. 659 [ 106 L.Ed.2d at p. 538 , 109 S.Ct. at p. 3136.) But a majority of the United States Supreme Court rejected this proposed reformulation of the law, concluding that it was "nothing more than an attempt to lower considerably the level of scrutiny in Establishment Clauses cases." ( 492 U.S. at p. 609 [106 L.Ed.2d at pp. 504-505, 109 S.Ct. at p. 3109.)
Thus, the Lemon test ( supra, 403 U.S. 602 ) has remained controlling law for 20 years. [3] We are required to decide federal constitutional cases on the law as it presently exists. Accordingly, we apply the Lemon test in this case.
If a challenged governmental action fails any of the three requirements of the Lemon test, it is unconstitutional. ( Edwards v. Aguillard, supra, 482 U.S. at p. 583 [96 L.Ed.2d at pp. 518-519].) Although we have doubts whether the government-sponsored prayers at issue here pass the "secular purpose" test, that question need not be addressed because we conclude that the practice of government sponsorship of graduation prayers fails both the "effect" and the "entanglement" tests of Lemon, supra, 403 U.S. 602 , thus rendering the practice unconstitutional.
2. The "Primary Effect" Test
(3a) Under the "primary effect" test of Lemon, supra, 403 U.S. 602 , the inquiry is whether, irrespective of the government's actual objective, the *873 practice in question conveys a message of endorsement or disapproval. ( Wallace v. Jaffree (1985) 472 U.S. 38, 56, fn. 42 [ 86 L.Ed.2d 29, 43 , 105 S.Ct. 2479 ]; accord, County of Allegheny, supra, 492 U.S. at p. 593 [ 106 L.Ed.2d at p. 494 , 109 S.Ct. at p. 3101 ].) Recently, the United States Supreme Court reaffirmed that the establishment clause "`preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. '" ( County of Allegheny, supra, 492 U.S. at p. 593 [ 106 L.Ed.2d at p. 494 , 109 S.Ct. at p. 3101 ], italics in original.)
The religious invocations and benedictions challenged here are, in whole or major part, prayers. As one federal appellate court has observed: "Prayer is perhaps the quintessential religious practice for many of the world's faiths.... [¶] Prayer is an address of entreaty, supplication, praise, or thanksgiving directed to some sacred or divine spirit, being, or object. That it may contemplate some wholly secular objective cannot alter the inherently religious character of the exercise." ( Karen B. v. Treen (5th Cir.1981) 653 F.2d 897, 901 , affd. (1982) 455 U.S. 913 [ 71 L.Ed.2d 455 , 102 S.Ct. 1267 ].) The United States Supreme Court has recognized the religious nature of prayer. [4] ( Engel v. Vitale (1962) 370 U.S. 421, 424-425 [ 8 L.Ed.2d 601, 604-605 , 82 S.Ct. 1261 , 86 A.L.R.2d 1285 ].)
In the graduates' young lives, high school graduation is a momentous achievement; it is the culmination of many hundreds of hours of instruction, study, and academic testing. In our culture, it also marks a critical stage of passage from childhood to adulthood. For these reasons, the fact of graduation is celebrated by an official ceremony attended by the graduates and their parents and teachers. Many graduates remember the occasion for the rest of their lives.
Through its graduation ceremony, a high school acknowledges and celebrates the graduates' successful completion of its course of studies. Considered an integral part of the educational process, the graduation ceremony is *874 organized and controlled by school officials. Public high school graduation ceremonies are generally held on government property and funded with public money. Because the ceremony is organized and controlled by the government to celebrate a significant event, words spoken as part of a public high school graduation ceremony inevitably create a strong appearance of government endorsement. (4) (See fn. 5.) When a school district opens or closes the graduation ceremony with a prayer, it sends a powerful message that it approves of the prayer's religious content. [5]
(3b) As the United States Supreme Court has said: "The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from `making adherence to a religion relevant in any way to a person's standing in the political community.'" ( County of Allegheny, supra, 492 U.S. at pp. 593-594 [ 106 L.Ed.2d at p. 495 , 109 S.Ct. at p. 3101], italics added.) Regardless of its actual purpose, when the government sponsors prayers at high school graduation ceremonies it gives the appearance of taking a position on religious questions. Through the practices challenged in this case, the government appears to prefer religion over nonreligion; appears to prefer religions that acknowledge the practice of petitionary prayer over religions that do not recognize such prayer; appears to prefer the religious belief that prayer should be public over the belief that prayer should be private; and implicitly endorses religions that address a single, anthropomorphic, and male deity over those that do not.
Recently, a federal district court held unconstitutional a practice of including prayer at a high school's graduation ceremonies that was virtually identical to the practice involved here. The court observed that students who were not members of the religions endorsed, or whose families were nonbelievers, might view the school's action as indicative of a preference for beliefs other than their own. ( Weisman v. Lee (D.R.I. 1990) 728 F. Supp. 68 , *875 72-73, affd. (1st Cir.1990) 908 F.2d 1090 , cert. granted sub nom. Lee v. Weisman (1991) ___ U.S. ___ [ 113 L.Ed.2d 240 , 111 S.Ct. 1305 ].) In our view, the same is true of parents, teachers, and guests. "When a religious invocation is given via a sound system controlled by school principals and the religious invocation occurs at a school-sponsored event at a school-owned facility, the conclusion is inescapable that the religious invocation conveys a message that the school endorses the religious invocation." ( Jager v. Douglas County School Dist. (11th Cir.1989) 862 F.2d 824 , 831 [98 A.L.R.Fed. 175], cert. den. (1989) 490 U.S. 1090 [ 104 L.Ed.2d 988 , 109 S.Ct. 2431 ] [holding invocations preceding public high school football games unconstitutional].)
Here, the District argues that there is no impermissible effect of endorsing a religious practice. It emphasizes that the graduation prayers occur only once a year, are brief and "nonsectarian," and are part of a ceremony that is otherwise secular. These considerations, however, cannot validate government sponsorship of this religious practice.
Although the high school graduation ceremony occurs only once a year, it is, as noted earlier, a significant event in the lives of many participants, precisely because it occurs only once in the lifetime of a graduate. Even when such a milestone in the lives of participants is not involved, courts have invalidated annual governmental practices of a religious nature (e.g., County of Allegheny, supra, 492 U.S. 573 , [annual creche display]; Fox v. City of Los Angeles (1978) 22 Cal.3d 792 [ 150 Cal. Rptr. 867 , 587 P.2d 663 ] [annual display of lighted cross]) or instances of governmental involvement with religion that are unlikely to be repeated by the participants (e.g., Feminist Women's Health Center, Inc. v. Philibosian (1984) 157 Cal. App.3d 1076 [ 203 Cal. Rptr. 918 ] [government-sponsored religious burial rites]) when they otherwise transgress constitutional boundaries.
The brevity of the invocations is similarly insufficient to dispel the apparent message of government endorsement. ( Jager v. Douglas County School Dist., supra, 862 F.2d at p. 832.) Because prayer is religious and advances religion, "`the limited nature of the encroachment does not free the state from the limitations of the Establishment Clause.'" ( Ibid.; see Abington School Dist. v. Schempp, supra, 374 U.S. 203, 225 [ 10 L.Ed.2d 844, 859-860 ] ["it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment"].) The proper focus, therefore, is not on the duration of the practice, but on its religious character. ( Ibid. )
Nor does the predominantly secular nature of the graduation ceremony make the government's endorsement of prayer less offensive to the First *876 Amendment's establishment clause. On the contrary, using prayers to mark the beginning or end of the graduation ceremony, which is a ritual celebration of the completion of high school, causes religion to be closely identified with government. In other words, making religious speech an integral part of this government-controlled and otherwise secular public school ceremony produces a "symbolic union" of state and religion, an effect that the establishment clause does not permit. (See Grand Rapids School District v. Ball (1985) 473 U.S. 373, 392 [ 87 L.Ed.2d 267, 282-283 , 105 S.Ct. 3216 ].)
In County of Allegheny, supra, 492 U.S. 573 , and Lynch v. Donnelly (1984) 465 U.S. 668 [ 79 L.Ed.2d 604 , 104 S.Ct. 1355 ], the United States Supreme Court evaluated the constitutionality of government displays of religious objects by considering whether the displays, in their particular physical settings, had the effect of endorsing religious beliefs. [6] In this case, the District proposes that we undertake a similar evaluation, arguing that graduation prayers are permissible because they are only a part of a ceremony that is secular overall. But the suggested approach is not useful in determining the constitutionality of graduation prayers. First, government-sponsored group religious exercises are active and participatory; for example, those attending the ceremony may be asked to "stand and join in prayer." Such practices cannot be equated with the passive display of religious objects. Moreover, under the District's logic, prayers at the beginning of the public school day would be constitutionally unobjectionable solely because they would be part of an educational experience that is predominantly nonreligious. Yet prayers at the beginning of the school day have long been held unconstitutional. ( Engel v. Vitale, supra, 370 U.S. 421 .)
The assertedly "nonsectarian" nature of the prayers at issue here does not render their government sponsorship constitutionally acceptable. As discussed earlier, a government practice violates the establishment clause when it appears to place the government's stamp of approval on a particular type of religious practice, such as public prayer. The United States Supreme Court has made clear that the establishment clause prohibits not only explicit denominational preferences, but also government favoritism of religion in general (e.g., County of Allegheny, supra, 492 U.S. at p. 593 [106 *877 L.Ed.2d at pp. 494-495, 109 S.Ct. at p. 3101]), as well as government sponsorship of "neutral" prayers and religious exercises ( Engel v. Vitale, supra, 370 U.S. at p. 430 [ 8 L.Ed.2d at p. 60 ]).
The inclusion of prayers in the official school ceremony cannot be justified as "accommodation" of religion. The United States Supreme Court explained in County of Allegheny that "[g]overnment efforts to accommodate religion are permissible when they remove burdens on the free exercise of religion." ( 492 U.S. at p. 601, fn. 51 [106 L.Ed.2d at pp. 499-500, 109 S.Ct. at p. 3105], italics added.) The practice of opening and closing a government-sponsored school ceremony with prayers does not remove any burden on the free exercise of religion. There is no free exercise right for government officials to include prayers in a public school ceremony. The high court has acknowledged that the establishment clause permits some accommodation of religion that is not mandated by the free exercise clause ( id. at p. 613, fn. 59 [ 106 L.Ed.2d at p. 507 , 109 S.Ct. at p. 3111]), and that there is "ample room under the Establishment Clause for `benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference'" ( Corporation of Presiding Bishop v. Amos (1987) 483 U.S. 327, 334 [ 97 L.Ed.2d 273, 282 , 107 S.Ct. 2862 ], italics added). There is no room, however, for official sponsorship under the guise of "accommodation." [7]
In this case, the District also seeks to justify its practice of incorporating prayers in its graduation programs by arguing that "no state coercive authority" is present in the graduation context. But, as we shall explain, this focus on coercion is misplaced.
(5) It has been clear for almost three decades that coercion is not an element of an establishment clause violation. In Engel v. Vitale, supra, 370 U.S. 421, 430 [ 8 L.Ed.2d 601, 607 ], the United States Supreme Court *878 invalidated a statute that required a brief nondenominational prayer to be recited at the start of each school day. The court explained: "Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause...." ( Ibid. [ 8 L.Ed.2d 601, 607 ].) In subsequent decisions, the high court has adhered to this holding. (See, e.g., Abington School Dist. v. Schempp, supra, 374 U.S. at p. 223 [ 10 L.Ed.2d at p. 858 ] ["The 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."]; Committee for Public Education v. Nyquist (1973) 413 U.S. 756, 786 [ 37 L.Ed.2d 948, 970 , 93 S.Ct. 2955 ] ["proof of coercion... [is] not a necessary element of any claim under the Establishment Clause"]; County of Allegheny, supra, 492 U.S. at p. ___ [ 106 L.Ed.2d at p. 517 , 109 S.Ct. at p. 3119 ] (conc. opn. of O'Connor, J., for three justices) ["To require a showing of ... even indirect coercion, as an essential element of an Establishment Clause violation would make the Free Exercise Clause a redundancy."].)
(3c) Although graduation ceremonies are usually not mandatory, most graduates and their families want to and do attend them. In Abington School Dist. v. Schempp, supra, 374 U.S. 203 , the high court invalidated religious exercises in schools even though "the student may absent himself from the classroom or, should he elect to remain, not participate in the exercises." (At p. 207 [ 10 L.Ed.2d at p. 850 ].) Similarly, school officials cannot avoid an establishment clause violation by permitting graduating students to forgo their own graduation ceremonies when the official program includes religious messages with which they disagree. Such a result, in which nonbelievers and adherents of minority religions would be effectively excluded from, or made to feel unwelcome at, an important public school activity, would be contrary to the proper and intended role of public schools in our society. The public school is "[d]esigned to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people...." ( McCollum v. Board of Education (1948) 333 U.S. 203, 216 [ 92 L.Ed. 649, 661 , 68 S.Ct. 461 , 2 A.L.R.2d 1338 ] (conc. opn. of Frankfurter, J.).) In other words, "`[t]he public school is at once the symbol of our democracy and the most pervasive means of promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools....'" ( Edwards v. Aguillard, supra, 482 U.S. at p. 584 [ 96 L.Ed.2d at p. 519 ].)
We conclude that the practice of including religious invocations and benedictions at public high school graduation ceremonies inevitably and impermissibly conveys a message that the District favors or prefers the religious beliefs expressed by the invocation and benediction speakers. "If *879 government is to be neutral in matters of religion, rather than showing either favoritism or disapproval ..., government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community." ( County of Allegheny, supra, 492 U.S. at p. 627 [ 106 L.Ed.2d at p. 517 , 109 S.Ct. at p. 3119 ] (conc. opn. of O'Connor, J.).) The practice at issue fails the "effect" test of Lemon, supra, 403 U.S. 602 , and is therefore unconstitutional.
3. The "Excessive Entanglement" Test
(6) Government supervision of religious practices is fundamentally inconsistent with the concept of separation of religion and civil authority. Thus, the United States Supreme Court has said that the establishment clause forbids "`state inspection and evaluation of the religious content of a religious organization....'" ( Larson v. Valente (1982) 456 U.S. 228, 255 [ 72 L.Ed.2d 33, 54 , 102 S.Ct. 1673 ], quoting Lemon, supra, 403 U.S. at p. 620 [ 29 L.Ed.2d at p. 760 ].) The establishment clause also prohibits state inspection and evaluation of the religious content of speech. ( Aguilar v. Felton (1985) 473 U.S. 402, 410-411 [ 87 L.Ed.2d 290, 298-299 , 105 S.Ct. 3232 ].) Such activities pose an "intolerable risk" of excessive government entanglement with religion. (See Tony & Susan Alamo Foundation v. Sec'y of Labor (1985) 471 U.S. 290, 305 [ 85 L.Ed.2d 278, 291 , 105 S.Ct. 1953 ].)
The practice of including prayers at public high school graduation ceremonies impermissibly entangles government in religious matters in two ways: It involves governmental selection or approval of religious speakers and governmental approval of the content of public prayer.
Graduation ceremonies are official functions, and school administrators must either select the individuals who will give the invocations and benedictions, or approve in the final instance the students' selections of religious speakers.
As mentioned previously, at one of the four high schools the same minister has given both the invocation and benediction every year since 1977. This practice is constitutionally impermissible because the selection of the same minister or ministers of the same religion for graduation ceremonies over a number of years conveys a powerful message of endorsement of a single religion, thereby violating the "effect" test of Lemon, supra, 403 U.S. 602 . At the other high schools, however, the District chooses annually among the clergy or adherents of various religions to deliver the graduation prayers. The process of making these selections impermissibly entangles the District in religious matters.
*880 How is the public school official to choose a speaker to deliver a religious message? On what basis does the official determine which religion or creed will be represented and which adherent or member of the clergy will be acceptable? Because the tendency is great to make such choices dependent on the religious preference of the school official, or on the religious preferences of the majority of the school community, the degree of entanglement is unacceptably high.
There is a second problem with the District's practices that creates an impermissible risk of entanglement of civil authorities with religious matters. If a school district permits members of the clergy or adherents of various religions to deliver graduation prayers, how will it ensure against promotion of specific religious beliefs or concepts? Local school officials would have to evaluate the content of the prayers. But such prophylactic government monitoring of religious speech is constitutionally impermissible.
The United States Supreme Court has held that "`for [a state] to be "certain," as it must be, that ... [religious] personnel do not advance the religious mission'" of their churches in the public school setting, would "`necessarily give rise to a constitutionally intolerable degree of entanglement between church and state.'" ( Aguilar v. Felton, supra, 473 U.S. at pp. 410-411 [87 L.Ed.2d at p. 298]; compare Mergens, supra, 496 U.S. 226 , — [ 110 L.Ed.2d 191, 217-218 , 110 S.Ct. 2356, 2373 ] [federal law requiring equal access for campus religious clubs on same basis as other student organizations does not excessively entangle government with religion because school officials may not promote, lead, or participate in meetings and may monitor them only for custodial purposes], with Widmar v. Vincent (1981) 454 U.S. 263, 272, fn. 11 [ 70 L.Ed.2d 440, 449 , 102 S.Ct. 269 ] [invasive monitoring of student group meetings to prevent religious speech would risk excessive entanglement].) To allow preventive monitoring by the state of the content of religious speech inevitably leads to gradual official development of what is acceptable public prayer. "This result is as contrary to the requirements of the Establishment Clause as is ... composition of an official state prayer." ( Weisman v. Lee, supra, 728 F. Supp. at p. 74 .) This kind of surveillance creates the entanglement that the United States Supreme Court condemned in Lemon, supra, 403 U.S. 602 . ( Bennett v. Livermore Unified School Dist., supra, 193 Cal. App.3d at p. 1020 .) [8]
*881 We conclude that the official approval of religious speakers and government monitoring of the content of religious speech necessarily involved in the practice at issue impermissibly entangle government in religious matters, and therefore that government sponsorship of graduation prayers is unconstitutional.
4. Applicability of Marsh v. Chambers
(7) In support of its argument that prayers at its high school graduation ceremonies are proper, the District also relies on Marsh v. Chambers, supra, 463 U.S. 783 (hereafter Marsh ), and Stein v. Plainwell Community Schools (6th Cir.1987) 822 F.2d 1406 .
In Marsh , the United States Supreme Court, declining to employ the Lemon tests, upheld the practice of opening legislative sessions with prayer. The court based its holding in Marsh on the "unique history" of legislative prayer, emphasizing that the First Congress opened its sessions with prayer. [9] (463 U.S. at pp. 790-791 [77 L.Ed.2d at pp. 1026-1027].) In County of Allegheny, supra, 492 U.S. at p. 669 [106 L.Ed.2d at pp. 544-545, 109 S.Ct. at p. 3142], Justice Kennedy proposed an approach to establishment clause problems that would have extended Marsh beyond its facts and sanctioned governmental religious practices accepted in 1791 and their contemporary equivalents. The majority rejected this approach: " Marsh plainly does not stand for the sweeping proposition ... that all accepted practices 200 years old and their equivalents are constitutional today.... [¶] [This] reading of Marsh would gut the core of the Establishment Clause, as this Court understands it." ( 492 U.S. at p. 603 [ 106 L.Ed.2d at p. 501 , 109 S.Ct. at p. 3106].)
The high court has taken particular care to explain that Marsh should not be applied to determine the constitutionality of public school practices. In Edwards v. Aguillard, supra, 482 U.S. 578 , the court said the historical approach taken in Marsh is "not useful in determining the proper roles of *882 church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted." [10] ( 482 U.S. at p. 583, fn. 4 [96 L.Ed.2d at pp. 518-519].)
In Stein v. Plainwell Community Schools, supra, 822 F.2d 1406 (hereafter Stein ), a federal appellate court concluded that religious invocations and benedictions at high school commencement exercises were constitutionally permissible in principle, although it also concluded that the specific invocations and benedictions at issue violated the establishment clause because they "employ[ed] the language of Christian theology and prayer." ( Id. at p. 1410 (lead opn. of Merritt, J.).) In reaching these conclusions, the court relied on Marsh, supra, 463 U.S. 783 , but made no reference whatsoever to the United States Supreme Court's statement in Edwards v. Aguillard, supra, 482 U.S. at page 583 , footnote 4 [96 L.Ed.2d at pages 518-519], that Marsh has no application to religion in the public schools. Because it disregarded this explicit limitation imposed by the high court, we conclude that Stein represents an improper extension of Marsh .
Moreover, the approach of the Stein court, supra, 822 F.2d 1406 , requires judges or other officials to pass on the acceptability of specific religious references in public prayers. (8) Yet "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, supra, 370 U.S. at p. 425 [ 8 L.Ed.2d at p. 605 ].) Judges and other government officials have no more authority to edit public prayers than they have to compose them.
Finally, we observe that in this case the District's practices would not pass constitutional muster even under Stein, supra, 822 F.2d 1406 . The prayers at the District's graduation ceremonies contained religious references indistinguishable from those in one of the prayers held unconstitutional in Stein . ( Id. at p. 1407, fn. 1.)
B. The Religion Clauses of the California Constitution
(9a) The California Constitution contains guarantees of the separation of religion and state in addition to those found in the federal Constitution. In language virtually identical to the First Amendment's establishment clause, our state Constitution declares, "The Legislature shall make no law *883 respecting an establishment of religion." (Cal. Const., art. I, § 4.) (10) Although federal cases may supply guidance for interpreting this provision, California courts must independently determine its scope. (Cal. Const., art. I, § 24; see Bennett v. Livermore Unified School Dist., supra, 193 Cal. App.3d at p. 1017 .) (9b) The practice of government endorsement of graduation prayers not only violates the establishment clause of the federal Constitution but independently violates the separation of religion and government set forth in the corresponding clause of the California Constitution.
Two other provisions of the state Constitution, having no counterparts in the federal charter, provide additional guarantees that religion and government shall remain separate. Section 4 of article I guarantees the "[f]ree exercise and enjoyment of religion without discrimination or preference...." The Attorney General of this state has observed that "[i]t would be difficult to imagine a more sweeping statement of the principle of governmental impartiality in the field of religion" than that found in the "no preference" clause ( 25 Ops.Cal.Atty.Gen. 316 , 319 (1955)), and California courts have interpreted the clause as being more protective of the principle of separation than the federal guarantee ( Fox v. City of Los Angeles, supra, 22 Cal.3d 792 ). As we noted earlier, when the government sponsors prayers at public school ceremonies it appears to take positions on religious questions. The practice at issue independently violates the "no preference" clause of the California Constitution.
The California Constitution further provides: "Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose...." (Cal. Const., art. XVI, § 5.) This section prohibits not only material aid to religion, but any official involvement that promotes religion. ( California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 605, fn. 12 [ 116 Cal. Rptr. 361 , 526 P.2d 513 ].) As we have explained, government sponsorship of prayer promotes religion. Accordingly, religious invocations and benedictions at public school graduation ceremonies are prohibited by article XVI, section 5 of the state Constitution as well.
III. CONCLUSION
Ours is a religiously diverse nation. Within the vast array of Christian denominations and sects, there is a wide variety of belief and practice. Moreover, substantial segments of our population adhere to non-Christian *884 religions or to no religion. [11] Respect for the differing religious choices of the people of this country requires that government neither place its stamp of approval on any particular religious practice, nor appear to take a stand on any religious question. In a world frequently torn by religious factionalism and the violence tragically associated with political division along religious lines, our nation's position of governmental neutrality on religious matters stands as an illuminating example of the true meaning of freedom and tolerance.
Because the practice of officially endorsed prayers at public school graduation ceremonies cannot be reconciled with the constitutional principles of religious freedom and official neutrality, we reverse the judgment of the Court of Appeal. The matter is remanded to the Court of Appeal with directions to affirm the judgment of the trial court.
Mosk, J., and Broussard, J., concurred.
LUCAS, C.J., Concurring.
This is a difficult and important case. As the opinions of the justices reveal, the issue of prayer at high school graduations and ceremonies has been judicially debated across the nation. The United States Supreme Court has recently granted certiorari in Lee v. Weisman (cert. granted Mar. 18, 1991, ___ U.S. ___ [ 113 L.Ed.2d 240 , 111 S.Ct. 1305 ]) (hereafter Lee ), in which the Court of Appeals for the First Circuit ( Weisman v. Lee (1st Cir.1990) 908 F.2d 1090 ) held that a public prayer delivered by a clergyman at the close of a high school graduation ceremony violated the establishment clause of the First Amendment as construed in Lemon v. Kurtzman (1971) 403 U.S. 602 [ 29 L.Ed.2d 745 , 91 S.Ct. 2105 ] (hereafter Lemon ). This case raises the same issue and may reach the court in due course and in sufficient time to be considered with Lee.
(2b), (3d) Reluctantly, I concur in the judgment. On issues of federal constitutional law, this court is bound under the supremacy clause of the United States Constitution by applicable decisions of the United States Supreme Court. ( Chesapeake & Ohio Ry. Co. v. Martin (1931) 283 U.S. 209 [ 75 L.Ed. 983 , 51 S.Ct. 453 ]; Scott v. Industrial Acc. Com. (1937) 9 Cal.2d 315, 323 [ 70 P.2d 940 ].) Based on my reading of the relevant Supreme Court authority, I conclude that the Morongo Unified School District's practice of allowing invited members of the clergy and others to offer prayers at high school graduation ceremonies violates the second prong of the high court's Lemon test, i.e., the primary effect of the practice is one *885 that "advances ... religion." ( Lemon, supra, 403 U.S. at pp. 612-613 [ 29 L.Ed.2d at p. 755 ].)
I write separately for two reasons.
First, as revealed by recent United States Supreme Court decisions, the law is in a state of flux in this area. The First Amendment forbids government action "respecting an establishment of religion or prohibiting the free exercise thereof." (U.S. Const., 1st Amend.) State-composed and financed prayers, Bible readings, and other religious exercises, even though nominally voluntary, cannot constitutionally form a part of public instruction in this country. ( Abington School Dist. v. Schempp (1963) 374 U.S. 203 [ 10 L.Ed.2d 844 , 83 S.Ct. 1560 ]; Engel v. Vitale (1962) 370 U.S. 421 [ 8 L.Ed.2d 601 , 82 S.Ct. 1261 , 86 A.L.R.2d 1285 ].) Yet, as Justice Douglas observed: "We are a religious people whose institutions presuppose a Supreme Being." ( Zorach v. Clauson (1952) 343 U.S. 306, 313 [ 96 L.Ed. 954, 963 , 72 S.Ct. 679 ].) Throughout our history, government institutions have recognized our religious heritage in symbols and ceremonies that express faith and confidence in such a Supreme Being, including the offering of prayer. ( Marsh v. Chambers (1983) 463 U.S. 783, 786-792 [ 77 L.Ed.2d 1019, 1023-1028 , 103 S.Ct. 3330 ] (hereafter Marsh ).) This case lies at the crossroads between public instruction and public ceremony. As such, it affords an opportunity to reexamine basic principles and values underlying the religion clauses of the First Amendment.
Second, like Justice Arabian, I would not reach the state constitutional issues raised by the parties. Resolution of those issues is not necessary to our decision. Particularly in light of the importance of this case and the climate in which it is decided, I would await the guidance that will emanate from full consideration of the First Amendment issues by the United States Supreme Court before exercising our independent powers to construe provisions of the California Constitution. In this way, we can best carry out our authority to proceed in a manner that is "informed but untrammeled" by the views of the high court. ( Reynolds v. Superior Court (1974) 12 Cal.3d 834, 842 [ 117 Cal. Rptr. 437 , 528 P.2d 45 ].)
I. The First Amendment
The purpose of the establishment and free exercise clauses of the First Amendment is "`to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other.'" ( Lynch v. Donnelly (1984) 465 U.S. 668, 672 [ 79 L.Ed.2d 604, 609 , 104 S.Ct. 1355 ] (hereafter Lynch ), quoting Lemon, supra, 403 U.S. at p. 614 [ 29 L.Ed.2d at p. 756 ].) Both the general language of the First Amendment and its interpretation by *886 the courts suggest that bright and immutable lines and rigid, absolute views are out of place in this area of the law. The religion clauses may not be construed "with a literalness that would undermine the ultimate constitutional objective as illuminated by history." ( Walz v. Tax Commission (1970) 397 U.S. 664, 671 [ 25 L.Ed.2d 697 , 90 S.Ct. 1409 ], italics added; see also Lynch, supra, 465 U.S. at p. 678 [ 79 L.Ed.2d at p. 613 ].)
History plays two important roles in constitutional analysis. Initially, it aids in the search for core values and principles underlying the text of the Constitution that may reveal with greater specificity than the text itself the evils sought to be prevented and the benefits sought to be obtained by constitutional provisions. A proper interpretation of the clauses must comport with "what history reveals was the contemporaneous understanding of [their] guarantees." ( Lynch, supra, 465 U.S. at p. 673 [ 79 L.Ed.2d at p. 610 ].) "Establishment Clause precedents have recognized the special relevance in this area of Mr. Justice Holmes' comment that `a page of history is worth a volume of logic.'" ( Committee for Public Education v. Nyquist (1973) 413 U.S. 756, 777, fn. 33 [ 37 L.Ed.2d 948, 965 , 93 S.Ct. 2955 ], quoting New York Trust Co. v. Eisner (1921) 256 U.S. 345, 349 [ 65 L.Ed. 963, 983 , 41 S.Ct. 506 , 16 A.L.R. 660 ].)
History also provides a means to assess whether particular government practices have enhanced or inhibited basic constitutional values and principles over time. Although long-standing tradition alone does not constitutionally validate a policy or practice, it may be a factor of great importance in a pragmatic evaluation of its character and effect. As the Supreme Court said in upholding tax exemptions for churches: "It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and predates it. Yet an unbroken practice of according an exemption to churches, openly and by affirmative state action, not covertly or by state inaction, is not something to be lightly cast aside. Nearly 50 years ago Mr. Justice Holmes stated: `If a thing has been practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it....'" ( Walz v. Tax Commission, supra, 397 U.S. at p. 678 [ 25 L.Ed.2d at p. 707 ].)
A. Principles Underlying the Religion Clauses
Religion played a decisive role in the colonization of the New World and the early development of the United States. The history of religious establishments in the colonies and the relationship between church and state at the time of adoption of the Constitution and the Bill of Rights, including the practice of public prayer, has been thoroughly explored by scholars. *887 (See, e.g., Wood, Religion and the Bill of Rights, in The First Freedom (1990) (hereafter Wood); Smith, Public Prayer and the Constitution (1987); Curry, The First Freedoms (1986) (hereafter Curry); Cord, Separation of Church and State (1982) (hereafter Cord); Rice, The Supreme Court and Public Prayer (1964) (hereafter Rice); Stokes & Pfeffer, Church and State in the United States (1964).) The Supreme Court has made extensive use of this history in resolving issues arising under the religion clauses. (See, e.g., Lynch, supra, 465 U.S. at pp. 673-678 [79 L.Ed.2d at pp. 609-613]; Marsh, supra, 463 U.S. at pp. 786-791 [77 L.Ed.2d pp. 1023-1027]; Walz v. Tax Commission, supra, 397 U.S. at pp. 677-692 [25 L.Ed.2d at pp. 706-715.)
A review of the Supreme Court precedent and the history of public ceremonial prayer referred to therein reveals two general principles underlying First Amendment law in this area. An examination of these principles will serve as a guide to discussion of the legal issues presented by this case.
1. Church-state Disengagement
Mindful of the pitfalls of their European heritage, the framers of the Constitution sought to prevent civil strife emanating from religious differences and to secure "freedom of conscience," i.e., the right to make individual choices in matters of religious belief and practice free from pressures, direct or indirect, applied by government. To this end, they required the state to be officially disengaged from church institutions in the sense that it could not create or sustain those institutions or favor one institution over another in making governmental decisions. Nor could it force or coerce individuals to engage in religious activity or make decisions about their rights or privileges as citizens on the basis of religious profession or lack of it. [1] I will refer to this principle as "church-state disengagement." [2]
*888 The church-state disengagement principle is an important reflection of the pluralism and diversity of American society and its religious traditions, a fact that has continued and increased in the two centuries since the Constitution was adopted. As one commentator has written: "[R]eligious diversity, not religious unity, characterized the life of the new nation. In the absence of any religious consensus among a population the vast majority of whom was unchurched ... assurances of religious liberty were needed.... At the time of the ratification of the Constitution, fewer than 10 percent of the population were members of churches and synagogues and `in 1800 there were fewer churches relative to the population at any time before or since.'" (Wood, supra, Religion and the Constitution, at p. 10.)
*889 The Supreme Court's decisions dealing with the religion clauses reflect the church-state disengagement principle, including its prohibitions of government preference among churches, government financial aid to churches, and promotion of religious practice. In striking down a Minnesota law requiring registration of some churches but not others as charitable organizations, the court observed: "The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.... [¶] This constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause." ( Larson v. Valente (1982) 456 U.S. 228, 244-245 [ 72 L.Ed.2d 33, 54 , 102 S.Ct. 1673 ].)
In Lemon, supra, 403 U.S. 602 , the court invalidated a salary supplement paid to nonpublic school teachers and a reimbursement of instructional expenses at those schools, articulating a three-prong test requiring a challenged practice to have a secular purpose, to exhibit a primary effect which neither advanced nor inhibited religion, and to avoid excessive government entanglement with religion. ( Id. at pp. 612-613 [29 L.Ed.2d at pp. 755-756].) The Lemon test, with its focus on the distinction between religious and secular purpose and effect, has become the standard establishment clause measuring device, extending as well to cases not involving parochial school financing. (See, e.g., County of Allegheny, supra, 492 U.S. 573 ; Lynch, supra, 465 U.S. 668 .)
As noted above, the court has also found violations of the religion clauses in cases of government-composed and sponsored prayer and Bible reading in school classrooms. ( Abington School Dist. v. Schempp, supra, 374 U.S. 203 ; Engel v. Vitale, supra, 370 U.S. 421 .) In Engel , the court struck down a school prayer written and prescribed by state government for recitation in classrooms. Although it declined to impose any burden of showing "direct governmental compulsion" on a plaintiff in an establishment clause case, it observed that indirect pressure was nonetheless present: "When the power, prestige, and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to the prevailing officially approved religion is plain." ( 370 U.S. at p. 431 [ 8 L.Ed.2d at p. 608 ].)
Distinguishing between the prescription of prayer in the classroom and the provision of a forum for student activity, the Supreme Court recently upheld a federal statute providing for use of school facilities by high school student organizations on a nondiscriminatory basis. The high school in question had denied facility privileges to a Christian club composed of its students, while according privileges to nonreligious student groups. On the religion clause issues, no opinion commanded a majority of the court. *890 Writing for four justices, Justice O'Connor stated in part: "[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." ( Board of Education v. Mergens (1990) 496 U.S. 226 , — [ 110 L.Ed.2d 191, 215-216 , 110 S.Ct. 2356, 2372 ] (hereafter Mergens ).)
2. Benign Recognition of Religion as Part of American Culture
The public acknowledgement of a Supreme Being is a consistent element of American culture, specifically endorsed by the framers and upheld in the traditions of both state and national governments since the founding of the republic. In upholding the Nebraska Legislature's practice of opening its sessions with prayer offered by a government-paid and appointed chaplain, the Supreme Court observed that the First Congress had authorized payment of chaplains and adopted a tradition of legislative prayer at the same time it approved the Bill of Rights. ( Marsh, supra, 463 U.S. at pp. 787-788 [77 L.Ed.2d at pp. 1024-1025].) [3] From its review of this history, the court concluded: "[T]he delegates [to Congress] did not consider opening prayers as a proselytizing activity or as symbolically placing the government's `official seal of approval on one religious view'.... Rather, the Founding Fathers looked at invocations as `conduct whose ... effect ... harmonize[d] with the tenets of some or all religions. '" ( 463 U.S. at p. 792 [ 77 L.Ed.2d at p. 1027 ], italics added.)
Since the First Congress, national government encouragement of public prayers, and other generalized references to a Supreme Being, has continued. Presidential proclamations calling upon the nation to pray and give thanks have been regularly issued. Presidential inaugural and other addresses from the founding of the republic to the present day have sought *891 blessings on our nation and its leadership, and encouraged prayer. (Cord, supra, at p. 35; Rice, supra, at pp. 177-193.) [4]
Even as the nation grew and diversified in the 19th century, the view that the religion clauses did not forbid government sponsorship of public prayer continued to prevail. Thomas Cooley, one of the great constitutional scholars of the era, commented on constitutionally permissible practices involving of "solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires." He cited as examples military chaplaincies, legislative prayer, and tax exemptions for churches. Recognizing the dangers of entanglement, however, Cooley cautioned: "Undoubtedly the spirit of the Constitution will require ... that care be taken to avoid discrimination in favor or any one denomination or sect; but the power to do any of these things will not be unconstitutional, simply because of being susceptible of abuse...." (Cooley, Constitutional Limitations (1868) pp. 470-471, quoted in Cord, supra, at pp. 13-14.)
All three branches of our national government and state governments continue to make ceremonial references to a Supreme Being. As noted above, the practice of beginning legislative sessions with prayer has continued in Congress and in most of the state legislatures. The United States Supreme Court begins its sessions with the cry, "God save the United States and this Honorable Court." ( Marsh, supra, 463 U.S. at pp. 786, 788-789, fns. 10-11 [77 L.Ed.2d at pp. 1024-1026].) Federal statutes call upon the President to, among other observances, set aside a national day of prayer "on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals" (36 U.S.C. § 169h) and to "issue a proclamation calling upon the people of the United States to observe each May 30, Memorial Day, by praying, each in accordance with his religious faith, for permanent peace." (36 U.S.C. § 169g.) (See also County of Allegheny, supra, 492 U.S. at pp. 669-671 [106 L.Ed.2d at pp. 544-545, 109 S.Ct. at pp. 3141-3142] (Kennedy, J., conc. & dis.), and Lynch, supra, 465 U.S. at pp. 675-676, fns. 2-5 [79 L.Ed.2d at pp. 611-612] [further *892 examples of presidential proclamations and other government action acknowledging a Supreme Being].)
The motto "In God We Trust" has appeared on United States coins and currency since the Civil War. It is recognized by federal statute as our national motto. ( 36 U.S.C. § 186 .) With respect to the continuing use of the motto, Justice Brennan wrote: "It is not that the use of these four words ["In God We Trust"] can be dismissed as `de minimis' — for I suspect there would be intense opposition to the abandonment of that motto. The truth is that we have simply interwoven the motto so deeply into the fabric of our civil polity that its present use may well not present that type of involvement which the First Amendment prohibits." ( Abington School Dist. v. Schempp, supra, 374 U.S. at p. 303 [ 10 L.Ed.2d at p. 904 ] (Brennan, J., conc.).)
Consistent with Justice Brennan's observation, the court has upheld government practices based on traditions embedded "into the fabric of our civil policy" despite their express recognition of religion or religious ideas. (E.g., Zorach v. Clauson, supra, 343 U.S. 306 [public school children given released time from school for religious instruction]; Walz v. Tax Commission, supra, 397 U.S. 664 [tax preferences for churches]; Marsh, supra, 463 U.S. 783 [legislative prayer by paid chaplains].)
Despite the passage of time and even in our increasing diversity, inclusiveness, and sophistication as a nation, the invocation of a Supreme Being in public prayer on civic ceremonial occasions remains part of our heritage and culture. Whether in high school or college commencement exercises, Fourth of July celebrations, Memorial Day remembrances, or on other occasions, a Supreme Being is invoked in a spirit of thanks and praise and in supplications for help and guidance. [5] In Cooley's phrase, the "general religious sentiment of mankind" continues to be part of American culture.
In light of these principles, the religion clauses represent not a "wall of separation" but a permeable membrane. They allow the free flow of government action, based on a historical tradition that recognizes the civic importance of religion and religious ideas, but forbid overt discrimination among sects or religious groups, direct financial support of churches, government *893 pressure designed to require or prohibit religious acts, and other conduct which, "in reality, ... establishes a religion or religious faith or tends to do so." ( Lynch, supra, 465 U.S. at p. 678 [ 79 L.Ed.2d at p. 613 ].)
B. An Analysis of This Case
This action comes to us after plaintiffs prevailed on a motion for summary judgment and obtained a permanent injunction barring any "religious" invocations or benedictions at graduation ceremonies in the Morongo Unified School District. As the moving and ultimately prevailing party, plaintiffs had the burden of demonstrating as a matter of law the unconstitutionality of the school district's policy and practice. ( Lipson v. Superior Court (1982) 31 Cal.3d 362, 374 [ 182 Cal. Rptr. 629 , 644 P.2d 822 ].) The facts are taken from the uncontradicted evidence in the declarations, documents, and deposition testimony before the trial court.
1. Facts
The occasion is a high school graduation ceremony. Its purpose is to celebrate and commemorate an event of significance in the lives of young people and their teachers, parents, families, and friends: the successful completion of a period of academic study and physical, intellectual, and emotional growth that has brought the young people to the threshold of adulthood. The ceremony is not open to the public in the general sense. Tickets are issued to graduating students, family, and guests.
The graduation ceremony takes place after the students' academic work has been completed and evaluated. Attendance is voluntary in this sense: a student who does not attend will nonetheless receive a diploma and will suffer no adverse effects in his or her academic or civil status. As the nature of the event suggests, however, most students and those close to them want to and do attend.
The opening and closing prayers (invocations and benedictions) are one part of the ceremony. They are brief, generally one minute or less each. Measured in terms of time expended, they are a very small part of the overall event (one or two minutes in the forty-five minute to ninety minute exercises). Measured in terms of focus, they are secondary to other events, e.g., graduation speeches and presentations, musical performances, and, in some of the schools, the presentation of diplomas. According the school superintendent, the invocation and benediction are included to continue a historical tradition which adds to the ceremonial nature of the graduation event and has the support of the local community.
*894 Although the graduation ceremony is sponsored and supervised by the school district, it is an event carried on by, as well as for, the graduating students. A significant element of student choice pervades the program, including the selection of persons to deliver the invocation and benediction. A student leader chose the speakers to conduct the invocation and benediction at one of the schools in one year; a student committee regularly makes the selection at another school. Speakers have generally been chosen from the local clergy; on at least one occasion a teacher was chosen. Speakers serve voluntarily and receive no financial compensation.
The appendix to this opinion includes the texts of the invocation and benediction at one high school in 1986. The invocation, by a member of the clergy, begins with an introduction referring to the speaker's graduation from the same high school 20 years earlier and expressing hope and confidence in the future, and concludes by inviting those present to join in prayer if they were so inclined, but reminding them of their freedom not to do so. The three-sentence prayer addresses the "Heavenly father," gives thanks for the speaker's opportunity to see the students graduate, asks for confidence and courage in light of what the graduates had accomplished, and ends with a request for a blessing "in the name of our Lord, Amen."
The benediction speaker, a teacher, invited the audience to stand and join in prayer. Addressing the "Father," he expressed thanks for the graduates and asked for guidance, strength, happiness, good health, and other blessings. He asked these things "in Your name, Amen."
2. Evaluation
As the references in Justice Kennard's and Justice Panelli's opinions illustrate, the Supreme Court's recent pronouncements on the religion clauses are not altogether clear. However, current decisions have generally emphasized the importance of a detailed evaluation of the context of religious activity, symbolism, and expression in assessing constitutionality. Indeed, even a sectarian religious symbol such as a creche or menorah may be constitutionally displayed in one context ( Lynch, supra, 465 U.S. 668 [holiday display with Santa Claus house and Christmas tree]; County of Allegheny, supra, 492 U.S. 573 [menorah next to Christmas tree with sign referring to liberty]), but not in another ( County of Allegheny, supra, 492 U.S. 573 [creche standing alone in public courthouse with Roman Catholic religious society name and New Testament quotation attached]).
Full consideration of context thus appears essential to distinguish, in First Amendment terms, between "real threat" and "mere shadow" ( Abington School Dist. v. Schempp, supra, 374 U.S. at p. 308 [ 10 L.Ed.2d at p. 907 ] *895 (conc. opn. of Goldberg, J.)). In this regard, I offer several observations regarding the graduation ceremonial prayers at issue.
First, the nature of the event allows all audience members a high degree of freedom.
If one elects to participate, he or she may infuse the brief exercise with personal beliefs and emotions, particularly since references to God are "weak symbols" which readily conform to individual interpretation. As one commentator observes: "[T]he religious use of the term `God' comes as close as possible to a generic religious symbol. The symbol `God' is a vessel that can be filled by most religious persons' specific beliefs. Not only can all traditional Western and Eastern theists interpret the symbol to fit their specific faith, but Native American Indians and even most Buddhists can do so. Robert Bellah has rightly noted that `God' is `a word which almost all Americans can accept but which means so many different things to so many different people that it is almost an empty sign.' Thus, the symbol permits religious diversity in our pluralistic society." (Jones, supra, 31 J. Church & State at p. 413.)
If one elects not to participate, he or she may simply observe the event as a cultural phenomenon. Even persons who object to the practice are free to decline, inconspicuously and without diminution in their status as citizens, to engage in it. As the New Hampshire Supreme Court said in upholding invocations at town meetings: "One [person attending the meeting] may regard an invocation as purely ceremonial, another as a throwback to another day and another as religious practice which should be forbidden. But however any individual ... may describe the practice, it is not, on the facts of this case, an establishment of religion proscribed by the establishment clause of the First Amendment in any pragmatic, meaningful and realistic sense of that clause." ( Lincoln v. Page (1968) 109 N.H. 30 [ 241 A.2d 799, 800-801 ].)
Whether one participates or declines to do so, there are no adverse consequences. Neither the speaker, nor the students who chose him or her, nor the school district that approves the choice, retains any authority to impose any penalty on a person for electing not to participate in the exercise.
Second, invocations and benedictions serve an important secular function at high school graduations. They provide a sense of tradition, continuity, and transcendence that evokes positive emotions and expectations. These elements, in turn, serve to unify the community and provide a foundation for moral and ethical standards. In her concurring opinion in Lynch , Justice O'Connor observed that practices such as legislative prayers and opening *896 court sessions with "God save the United States and this honorable court" serve "the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society." ( Lynch, supra, 465 U.S. at pp. 692-693 [79 L.Ed.2d at pp. 622-623] (O'Connor, J., conc.); see also County of Allegheny, supra, 492 U.S. at pp. 628-631 [106 L.Ed.2d at pp. 518-519, 109 S.Ct. at pp. 3120-3121] (O'Connor, J., conc.).)
Although it does not appear that Justice O'Connor's "solemnization" approach to reconciling benign recognition of religion had been adopted or applied by a majority of the court ( County of Allegheny, supra, 492 U.S. at p. 595, fn. 46 [ 106 L.Ed.2d at p. 496 , 109 S.Ct. at p. 3103] (opn. of Blackmun, J., for two justices), that approach supports the invocation and benediction used here. All three of Justice O'Connor's functions are served by invocations and benedictions at high school graduation ceremonies. Appearing, as they do, at the beginning and end of the ceremony, invocations and benedictions serve to solemnize, highlight, and set off what goes on between. As shown by the particular invocation and benediction in this case, the speakers are recognizing the graduates and what they have accomplished and expressing confidence that their future will be a bright one. Without some sharing of these kinds of ideas and sentiments, a community is not a community.
Thus, notwithstanding that prayer is an obviously religious activity, "reasonable observers" might not view the long-standing practice of invocations and benedictions as "a disapproval of their particular religious choices, in light of the fact that they serve a secular purpose rather than a sectarian one and have largely lost their religious significance over time." ( County of Allegheny, supra, 492 U.S. at p. 631 [ 106 L.Ed.2d at p. 519 , 109 S.Ct. at p. 3121 ] (conc. opn. of O'Connor, J.).)
Third, considering the principle of church-state disengagement discussed above, the record contains no evidence of government sectarian bias in either intent or effect. With respect to the selection of speakers to deliver the invocation and benediction, a significant level of student choice was involved. (Cf., Mergens, supra, 496 U.S. at p. ___ [ 110 L.Ed.2d at p. 216 , 110 S.Ct. at p. 2372 .) Although school officials retained final authority to approve student choices, there is no evidence that school officials used their authority to promote one sect or religious denomination over another. Clergy and school personnel from multiple denominations were represented.
With respect to the content of the messages, the speaker giving the invocation testified that his use of the term "Heavenly Father" referred to God, and that his phrase "Our Lord" referred to "One who is sovereign over the *897 universe." He denied that he was necessarily referring to Christ. Plaintiffs supplied no evidence to the contrary. Thus, the evidence shows the terms used in the prayers are generalized references to a Supreme Being, much like the legislative prayers sustained by the Supreme Court in Marsh, supra, 463 U.S. 783 .
Of course, generalized references to God in a prayer are not consistent with the beliefs of everyone. They do not reflect the beliefs of atheists and others who may deny the existence of God or the effectiveness of prayer. But the same vice necessarily permeates the legislative prayers upheld in Marsh, supra, 463 U.S. 783 , the symbolic displays in Lynch, supra, 465 U.S. 668 ) and County of Allegheny ( supra, 109 S.Ct. 3086 ), and the released-time program in Zorach v. Clauson ( supra, 343 U.S. 306 ). As those cases teach, respecting the idea of a Supreme Being by offering prayer in the context of a culture, the institutions of which presuppose its existence may not be the same as respecting an establishment of religion. So long as a practice does not suggest or promote favoritism or factionalism among churches and there is no direct or indirect pressure brought by government to force participation, it need not be universal.
In view of these observations, the invocation and benediction may be analogous to the prayers offered in the Nebraska Legislature which were sustained by the Supreme Court in Marsh, supra, 463 U.S. 783 , as a benign recognition of religion as part of American culture. In Marsh , a six-member majority of the Supreme Court sustained the 200-year old practice of the Nebraska Legislature in opening its session with prayers offered by a government-paid chaplain. Without applying the Lemon ( supra, 403 U.S. 602 ) test or positing any secular purpose for legislative prayer, the court reviewed the 200-year history of the congressional chaplaincy practice and the similar 100-year history of the Nebraska chaplaincy practice and observed: "This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged." ( 463 U.S. at p. 791 [ 77 L.Ed.2d at p. 1027 ].) The court held that the founding fathers did not regard the legislative practice of prayer as proselytizing activity or as symbolically placing the government's "`official seal of approval on one religious view.'" ( Id. at p. 792 [ 77 L.Ed.2d at p. 1027 ].) Rather, they saw it as "simply a tolerable acknowledgement of beliefs widely held among the people of this country." ( Ibid. [ 77 L.Ed.2d at p. 1028 ].) As to the particular plaintiff in the case, a Nebraska legislator and taxpayer, the court observed that, as an adult, he was not readily subject to "`religious indoctrination.'" ( Ibid. [ 77 L.Ed.2d at p. 1028 ].)
After sustaining the general practice of legislative prayer, the court went on to sustain its particular incidents in the Nebraska Legislature. It *898 ultimately attributed no constitutional significance to the 16-year tenure of one Presbyterian clergyman as chaplain, the payment of the chaplain from public funds, or the Judeo-Christian tradition of the prayers offered. It noted the performance of guest chaplains and pointed to the lack of evidence of any "impermissible motive" in the chaplain's selection and tenure. ( Marsh, supra, 463 U.S. at p. 793 [ 77 L.Ed.2d at p. 1028-1029 ].) As to the content of the prayers, it observed: "The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer." ( Id. at pp. 794-795 [ 77 L.Ed.2d at p. 1029 ].)
Like the prayers in Marsh , the invocation and benediction here are brief and general. There is no evidence that they were employed to proselytize or to disparage one or more religious sects or denominations. In this way, they are similar to the prayers in Marsh and consistent with the principle of benign recognition. Although not universal, the invocation and benediction harmonize with most religions and are a "tolerable acknowledgement of beliefs widely held among the people of this country." ( Marsh, supra, 463 U.S. at p. 792 [ 77 L.Ed.2d at p. 1028 ].)
There is, of course, a significant difference between the Nebraska Legislature and the Morongo Unified School District. In giving effect to the principle of church-state disengagement, the Supreme Court has been particularly zealous in policing the boundary between religious teaching and practice, and instruction in the public schools. In the public school context even generalized recognition of a Supreme Being has not been regarded as "benign recognition." In light of this difference, Justice Kennard attempts to distinguish Marsh ( supra, 463 U.S. 793 ), relying on a footnote in Edwards v. Aguillard (1987) 482 U.S. 578, 583 , footnote 4 [ 96 L.Ed.2d 510, 518-519 , 107 S.Ct. 2573 ], which states: "Such a historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted."
While it is conceivable that the court was attempting to preclude reliance on Marsh in any school-related context, its dictum need not be read so broadly. Edwards involved an explicit state requirement that "creation science" — a religious belief — be taught in public school classrooms. Therefore, the court's statement may refer only to the explicitly instructional aspect of public school education. This reading of Edwards is reinforced by the court's broad statements about the potentially directive and coercive nature of classroom instruction: "The Court has been particularly vigilant in *899 monitoring compliance with the Establishment Clause in elementary and secondary schools. Families entrust public 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. Students in such institutions are impressionable and their attendance is involuntary.... The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure." ( Edwards v. Aguillard, supra, 482 U.S. at pp. 583-584 [96 L.Ed.2d at p. 519], italics added; see also Abington School Dist. v. Schempp, supra, 374 U.S. 203, 223 [ 10 L.Ed.2d 844, 858-859 ] ["These [prayer and Bible reading] exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in school buildings under the supervision and with the participation of teachers employed in those schools. None of these factors, other than compulsory school attendance, was present in the [released time for religious instruction] program upheld in Zorach v. Clauson . [Italics added.]"].)
In addition, the Edwards footnote observes merely that historical analysis is inapposite because free public education postdated the Constitution. But although public instruction does postdate the Constitution, civic ceremonies employing invocations and benedictions do not. They are part of a tradition dating back to the founding of the republic; they involve a practice of prayer "similar to" that involved in Marsh ( supra, 463 U.S. at p. 791 [ 77 L.Ed.2d at p. 1027 ]).
In contrast to the graduation ceremony, school attendance is mandatory and the degree of freedom enjoyed by students in the classroom is demonstrably less than at graduation. Teachers and other school officials have significant and direct authority over impressionable young people in school classrooms and corridors. They are paid by the state to determine what is taught and how it is taught. They wield the power to control, evaluate, and discipline student behavior and performance. As authority figures, teachers and school administrators are not uncompensated, invited speakers whose power is limited to the inherent force of their expression. (See Engel v. Vitale, supra, 370 U.S. at p. 435, fn. 21 [8 L.Ed.2d at pp. 614-615] [distinguishing classroom prayer from "patriotic and ceremonial occasions" on which, for example, a "composer's professions of faith in a Supreme Being" were repeated]; see also id. at pp. 441-442 [8 L.Ed.2d at pp. 614-615] [observing that in directing a classroom prayer, the government is "performing a religious exercise" and "inserts a divisive influence" into the community (conc. opn. of Douglas, J.)].) Moreover, the graduation ceremony audience is composed of high school graduates (who are on the threshold *900 of adulthood) and their parents and families. ( Marsh, supra, 463 U.S. at p. 792 [77 L.Ed.2d at pp. 1027-1028].) In these circumstances, even indirect pressure is unlikely to play a significant role in student attitudes, perceptions, or practices.
There is no clear indication in any of the several Supreme Court cases that have analyzed Marsh that its holding will be confined to legislative prayer. In Lynch ( supra, 465 U.S. 668 ), the court relied extensively on Marsh ( supra, 463 U.S. 783 ) in reaffirming a historical approach to the religion clauses, recognizing the pervasive presence of religion and religious symbols in American life, and cautioning against "rigid, absolutist" views of the First Amendment. (465 U.S. at pp. 674-678 [79 L.Ed.2d at pp. 610-613].) The court upheld a city-erected display of a creche, Santa Claus house, and Christmas tree in a private park. In Wallace v. Jaffree (1985) 472 U.S. 38 [ 86 L.Ed.2d 29 , 105 S.Ct. 2479 ] (hereafter Wallace ), the court struck down the Alabama moment-of-silence statute, reaffirming its decision banning prayer in public schools. It noted the indirect coercive pressure brought on children by the statute and the Marsh ( supra, 463 U.S. 783 ) distinction between adults not susceptible to "religious indoctrination" and children subject to "peer pressure." ( Wallace, supra, 472 U.S. at pp. 60-61, fn. 51 [ 86 L.Ed.2d at p. 46 ].) Finally, in County of Allegheny ( supra, 492 U.S. 573 ) the Marsh decision was integrated into the analysis of each of the principal opinions. In the portion of his opinion that was endorsed by a five-person majority of the court, Justice Blackmun took care to distinguish between what he called the "general religious" and "nonsectarian" references in the legislative prayers in Marsh from the "specifically Christian symbol" of the creche which he viewed as demonstrating the "government's allegiance to a particular sect or creed." ( County of Allegheny, supra, 492 U.S. at p. 603 [ 106 L.Ed.2d at p. 501 , 109 S.Ct at p. 3106 ].) He also suggested a possible distinction between legislative prayer and government proclamations for a national day of prayer, observing that "legislative prayer does not urge citizens to engage in religious practices." ( Id. at p. 603, fn. 52 [ 106 L.Ed.2d at p. 501 , 109 S.Ct at p. 3106], italics added.)
In a portion of his opinion endorsed by Justice Stevens, Justice Blackmun offered a further interpretation of Marsh ( supra, 463 U.S. 783 ) based on Justice O'Connor's concurrence in Lynch ( supra, 465 U.S. 668 ): Legislative prayer is a form of "ceremonial deism" that serves the legitimate secular purpose of "solemnizing public occasions" and does not convey government approval of "particular religious beliefs." ( County of Allegheny, supra, 492 U.S. at p. 595, fn. 46 [ 106 L.Ed.2d at p. 496 , 109 S.Ct. at p. 3102].) Justice O'Connor viewed the legislative prayers in Marsh as government acknowledgements of religion which are not understood as conveying "an endorsement of particular religious beliefs" because "they serve [secular purposes *901 such as solemnizing the occasion] and because of their `history and ubiquity.'" ( County of Allegheny, supra, 492 U.S. at p. 625 [ 106 L.Ed.2d at p. 515 , 109 S.Ct. at p. 3118 ].) Finally, in his opinion for four justices, Justice Kennedy stated in part: " Marsh stands for the proposition, not that specific practices common in 1791 are an exception to the otherwise broad sweep of the Establishment Clause, but rather that the meaning of the Clause is to be determined by reference to historical practices and understandings. Whatever test we choose to apply must permit not only legitimate practices two centuries old but also any other practices with no greater potential for an establishment of religion.... The First Amendment is a rule, not a digest or compendium. 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." ( 492 U.S. at p. 670 [106 L.Ed.2d at pp. 544-545, 109 S.Ct. at p. 3142], citation and fn. omitted.)
In view of the above, I am not prepared to isolate Marsh ( supra, 463 U.S. 783 ) as an aberration in the mainstream of constitutional decisionmaking. Although it relies in part on a unique history, Marsh is not a historical artifact. Like Zorach v. Clauson ( supra, 343 U.S. 306 ), Lynch ( supra, 465 U.S. 668 ) and Walz v. Tax Commission ( supra, 397 U.S. 664 ), it is an example of the principle of benign recognition of religion and religious practices and ideas that is part of our historical and cultural tradition. But, like every sufficient statement of a legal principle, Marsh ( supra, 463 U.S. 783 ) contains within it parameters that limit its scope and confine its application: the court was careful to note the absence of discrimination, in either intent or effect, in favor of or against any religious denomination or group. The general reference to a Supreme Being, without more, placed the legislative prayers in Marsh within the principle of benign recognition without offending the principle of church-state disengagement. For this reason, the legislative prayers were constitutional.
Like a scientific theory, a legal principle must account for all the data, i.e., both church-state disengagement and benign recognition of religion and religious ideas in American constitutional law and civic culture. When government engages in a practice that is similar to those benign acknowledgements of a Supreme Being endorsed by the framers of the Constitution and that has stood the test of time by remaining an accepted part of culture, such practice should be upheld as constitutional unless it engages government in sectarian favoritism, financial aid to church institutions, or other conduct that pressures citizens, directly or indirectly, to believe or disbelieve. Having found none of the latter elements to be present in this case, I would, if free to do so, uphold the challenged practice of the school district.
*902 II. The California Constitutional Provisions
As stated above, having concluded that the practice of graduation prayers violates the establishment clause of the First Amendment as construed in light of the Supreme Court's Lemon ( supra, 403 U.S. 602 ) test, I would not reach plaintiffs' contentions that the practice violates provisions of the California Constitution as well.
As a result of the various opinions filed in this case, three justices have concluded that the practice violates our state Constitution, two have concluded it does not, and two (myself included) have declined to reach any state constitutional issues. Therefore, our judgment does not rest on the state Constitution; any resolution of the state constitutional issues will necessarily await another day. ( County of San Mateo v. Dell J. (1988) 46 Cal.3d 1236, 1241-1242, fn. 5 , & 1249-1250 [ 252 Cal. Rptr. 478 , 762 P.2d 1202 ] [lead opinion signed by three justices could not be relied on; concurring and dissenting opinion of four justices represented the majority view]; Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674, 679 [ 59 P.2d 144 ] [first ground of decision expressed in judicial opinion was only the personal opinion of the writer where it was clear that other justices based their concurrence only on second ground]; Farrell v. Board of Trustees (1890) 85 Cal. 408, 415-416 [ 24 P. 868 ] [ground of decision assented to by only three justices cannot be regarded as adopted by the Supreme Court or binding as authority].)
The posture of constitutional argument in this case is frequently encountered. Legislation or government action is challenged as unconstitutional under both the state and federal Constitutions. If the statute or action is determined to be invalid under either Constitution, the case is thus disposed of; the other can, but need not, be considered. If on the other hand, the statute or action is upheld under either Constitution, the other must be considered to resolve the entire controversy between the parties. Two questions inevitably arise: (1) which constitutional ground, federal or state, should be considered first; and (2) if the case can be disposed of on the ground first considered, should the remaining ground nonetheless be reached?
The views of my colleagues are divided on these questions. My research has revealed no systematic consideration of these issues in any of our opinions and divergent patterns in our decisionmaking. Because I believe a principled approach to these questions is not only possible, but essential, I will explain why I have decided to consider the federal constitutional issues first and forgo consideration of the state constitutional issues in this case.
The California Constitution is the supreme law of our state — a seminal document of independent force that establishes governmental powers and *903 safeguards individual rights and liberties. (Cal. Const., art. I, § 24; Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 261 [ 172 Cal. Rptr. 866 , 625 P.2d 779 , 20 A.L.R.4th 1118 ]; Allen v. Superior Court (1976) 18 Cal.3d 520, 525 [ 134 Cal. Rptr. 774 , 557 P.2d 65 ].) As the Supreme Court of California, we are the final arbiters of the meaning of state constitutional provisions. ( Raven v. Deukmejian (1990) 52 Cal.3d 336, 354 [ 276 Cal. Rptr. 326 , 801 P.2d 1077 ].) Our authority and responsibility in this regard is part of the basic structure of California government; it cannot be delegated to the United States Supreme Court or any other person or body. ( Id. at pp. 354-356.) When we construe provisions of the California Constitution, we necessarily do so in light of their unique language, purposes, and histories, in accordance with general principles of constitutional interpretation established in our case law. Nor do we act differently when the state constitutional provision in issue contains the same language as a federal constitutional provision. In such a case, we are not bound by a decision of the United States Supreme Court or any other court. We must consider and decide the matter independently.
By the same token, California is not an island. We are a part of a federal system created by the Constitution of the United States. By its own declaration, that Constitution is the supreme law of the land. (U.S. Const., art. VI, cl. 2.) Our judges take oaths to support and defend the Constitution of the United States, as well as that of California, in all aspects of governmental service. ( Ibid.; Cal. Const., art. XX, § 3.) The United States Supreme Court is the highest judicial authority in the federal system. (U.S. Const., art. III, § 1.) We have consistently emphasized in our case law that decisions of the United States Supreme Court, although not binding on questions of state constitutional law, are nonetheless entitled to great deference; we have gone so far as to say that such decisions will not be departed from in the absence of cogent and persuasive reasons. We summarized the law in this regard in Raven v. Deukmejian, supra, 52 Cal.3d 336 at page 353: "As early as 1938, we stated that `cogent reasons must exist before a state court in construing a provision of the state Constitution will depart from the construction placed by the Supreme Court of the United States on a similar provision in the federal Constitution.'"
Our policy of deference to United States Supreme Court decisions does not signify subservience or abdication of authority. It simply recognizes certain basic realities of constitutional adjudication. The United States Supreme Court is a judicial tribunal devoted in large measure to consideration of complex constitutional rights and liberties; it is the primary interpreter and protector of the guaranties of the Bill of Rights, which is the most comprehensive and far-reaching document of civil rights and liberties in our nation. Although we only rarely consider cases like this one which raise *904 fundamental issues of liberty going to the central fabric of our society, such questions are daily grist for the mill of the Supreme Court. In view of these circumstances, and in the absence of other compelling considerations, we do well to invite and await its views before giving final and definitive answers to complex and difficult questions of constitutional law. In this way, we can give appropriate deference to its views (as our cases require) and proceed in a fashion that is "informed but untrammeled" by federal constitutional principles. ( Reynolds v. Superior Court, supra, 12 Cal.3d at p. 842.)
If, on the other hand, we leap into the breach, finally resolving the state constitutional question, we deprive ourselves of the prospect of input not only from the high court but from other state and federal courts that may consider the issue. ( Michigan v. Long (1983) 463 U.S. 1032, 1037-1044 [ 77 L.Ed.2d 1201, 1211-1216 , 103 S.Ct. 3469 ] [clear statement of "adequate and independent state ground of decision" in state court opinion precludes United States Supreme Court review].)
Neither the rights of the parties nor the path of the law is imperiled by deferring consideration of a parallel state constitutional question. The party seeking to invalidate the state statute or practice has received a favorable decision and appropriate relief, subject to possible United States Supreme Court review of the federal questions decided. Even if review takes place, that party can reassert state constitutional grounds on remand, if necessary. Likewise, the losing party has no cause to complain — if its statute or practice is invalid under either the federal or state constitutions, relief is in order.
If the Supreme Court does not review our decision on the federal question, it will nonetheless be binding on the courts of this state until it is effectively overruled by a subsequent decision of this or the high court. ( Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450 [ 20 Cal. Rptr. 321 , 369 P.2d 937 ].) As we have observed many times, if the state constitutional issue retains significance, it will resurface in another case.
While deferral of parallel state constitutional questions is a means of obtaining the input of the Supreme Court and encouraging further national debate on complex and difficult constitutional issues, it may not be desirable in every case. For example, clear differences in the language and history of constitutional provisions may show that they are not truly parallel. In this event, high court review may not afford any valuable input into the meaning of our Constitution and the interests of judicial economy may favor disposition of both federal and state issues. There would be no point in postponing resolution of the state question if a holding of unconstitutionality on state grounds were inevitable notwithstanding the views of the high court. (See *905 People v. Ramos (1984) 37 Cal.3d 136, 160-161 [ 207 Cal. Rptr. 800 , 689 P.2d 430 ] (conc. & dis. opn. of Lucas, J.).)
With these factors in mind, I find this to be an appropriate case for deferral. The constitutional issue involved is difficult and complex and has produced a division in state and federal decisions across the country. Because of the Supreme Court's decision to grant certiorari in Lee ( supra, ___ U.S. ___ [ 113 L.Ed.2d 240 , 111 S.Ct. 1305 ]), it is likely that we will have the benefit of a high court decision on the federal issues involved in the area of high school graduation prayers within a year.
Although the federal and state constitutional provisions involved in this case are not identically worded, a key provision of article I, section 4 of the California Constitution is identical to the establishment clause of the First Amendment. As Justice Kennard observes: "In language virtually identical to the First Amendment's establishment clause, our state Constitution declares, `The Legislature shall make no law respecting an establishment of religion.'" (Plur. opn., ante, at pp. 882-883.) I would like to have the benefit of the United State Supreme Court's construction of this "virtually identical" language.
CONCLUSION
Lying, as it does, at the crossroads of constitutional principles and American traditions, the practice at issue in this case evokes great interest and strong feelings. There are sound reasons, validated by history and tradition, for government's disengagement from religion and for its benign recognition of religion as part of culture in the form of prayerful acknowledgement of a Supreme Being at public ceremonies. The republic has survived and religious diversity has flourished under the parallel operation of both of these principles. Although a strict application of the Lemon ( supra, 403 U.S. 602 ) test may invalidate the practice at issue here, a more sensitive and balanced application of these underlying principles may sustain it. In either event, First Amendment doctrine must fairly consider both principles if it is to be consistent with both the intent of the framers and the tenor of our times.
MOSK, J., Concurring.
I concur in Justice Kennard's well-reasoned opinion holding that religious invocations and benedictions at public high school graduation ceremonies violate both the federal and California Constitutions. I write separately to explain further why our state charter compels this result. Federal cases to which I refer are merely illustrative; in my view our state authorities are controlling in this matter.
*906 As Justice Brennan reminds us, "state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law." (Brennan, State Constitutions and the Protection of Individual Rights (1977) 90 Harv. L. Rev. 489 , 491.) Chief Justice Rehnquist reached a similar conclusion for a unanimous court in Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 81 [ 64 L.Ed.2d 741, 752 , 100 S.Ct. 2035 ]: the states may grant "individual liberties more expansive than those conferred by the Federal Constitution...."
Indeed, as the highest court of this state, we are independently responsible for safeguarding the rights of our citizens. State courts are, and should be, the first line of defense for individual liberties in the federal system. It is unnecessary to rest our decision on federal authority when the California Constitution alone provides an independent and adequate state constitutional basis on which to decide. (See, e.g., People v. Brisendine (1975) 13 Cal.3d 528, 551 [ 119 Cal. Rptr. 315 , 531 P.2d 1099 ].)
In his separate concurrence the Chief Justice virtually begs the Supreme Court to relieve us of our duty under the Constitution of California. Such a supplication is unprecedented. We are not a branch of the federal judiciary; we are a court created by the Constitution of California and we owe our primary obligation to that fundamental document. Only if an issue cannot be determined with finality under state constitutional doctrine do we turn to federal authority for assistance.
The Chief Justice suggests that after federal review we may possibly consider state constitutional issues. This is not only the horse trailing the cart, it results in unnecessary delay, additional costs to the parties — one here being a tiny school district — and a duplicative burden on judicial resources. State law and state constitutional principles should be our first, not our last, referent.
The Minnesota Supreme Court experience should be a lesson to us. In State v. Hershberger (Minn. 1989) 444 N.W.2d 282 , the court held the Amish are entitled to religious exemption from certain traffic requirements. The United States Supreme Court granted certiorari, took the case over, and then remanded for consideration in the light of its opinion in Employment Div. Dept. of Human Resources of Oregon v. Smith (1990) 494 U.S. 872 [ 108 L.Ed.2d 876 , 110 S.Ct. 1595 ] [holding no religious exemption for peyote users].
On remand, the Minnesota court declined to follow Smith, and instead, relying on the state Constitution, reiterated its original conclusion ( State v. *907 Hershberger (Minn. 1990) 462 N.W.2d 393 ). While the ultimate result in Minnesota was a vindication of state constitutionalism, the delay in achieving finality, the time and expense of unnecessary proceedings, and the duplicative burden on judicial resources, should caution us against traveling the same route in the instant case.
I
It is undisputed that provisions of the California Constitution are not dependent for their meaning on the federal Constitution. (Cal. Const., art. I, § 24; People v. Brisendine, supra, 13 Cal.3d at p. 551 .) Particularly with regard to the provisions of the California Constitution that apply to religion in public schools (Cal. Const., art. I, § 4, art. XVI, § 5, art. IX, § 8), the different history of our charter justifies the difference in interpretation. It is true that in Marsh v. Chambers (1983) 463 U.S. 783, 787 [ 77 L.Ed.2d 1019, 1024-1025 , 103 S.Ct. 3330 ], the United States Supreme Court pointed to the entanglement of government and religion in post-Colonial America to support its conclusion that the drafters of the First Amendment would not have prohibited invocational prayer. That historical discussion, however, is irrelevant to the question of the meaning of the California Constitution. Undoubtedly, there had been considerable entanglement of church and state in Spanish California, but the delegates to the 1849 constitutional convention had no intention of returning to such a relationship. [1] Rather, the convention delegates scrutinized the United States Constitution and the constitutions of the other states, and carefully selected the language that provided the greatest level of protection to California citizens.
For example, article I, section 4, of the California Constitution (hereafter article I, section 4) had its origin in the New York Constitution, and first appeared at the New York Constitutional Convention of 1777. It was chosen by the delegates to the California Constitutional Convention of 1849 over a provision of the Virginia Constitution that referred to the duty owed the "Creator" and the duty of "Christian forbearance, love and charity." ( 25 Ops.Cal.Atty.Gen. 316 , 319 (1955).) As originally adopted, it provided, "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state." (Cal. Const. of 1849, art. I, § 4.) Note particularly the prohibition against preference.
*908 This absolute separation of church and state was firmly recognized from the initial days of California jurisprudence. As early as 1858, Chief Justice Terry wrote in Ex parte Newman (1858) 9 Cal. 502 , 506-507: "When our liberties were acquired, our republican form of government adopted, and our Constitution framed, we deemed that we had attained not only toleration, but religious liberty in its largest sense — a complete separation between Church and State.... `All religious despotism commences by combination and influence, and when that influence begins to operate upon the political institution of a country, the civil power soon bends under it, and the catastrophe of other nations furnishes an awful warning of the consequences.... What other nations call religious toleration, we call religious rights; they were not exercised in virtue of governmental indulgence, but as rights of which the government cannot deprive any portion of her citizens, however small.'"
Chief Justice Terry held invalid under the first article of the original California Constitution a legislative enactment requiring observance of the sabbath. Much like the dissent in the instant case, it was argued that the day of rest on the sabbath had merely a civil purpose, a sort of compulsory Sunday togetherness, and that mankind was "in the habit of working too much, and thereby entailing evil upon society" ( 9 Cal. at p. 508 ). Chief Justice Terry for the court brushed aside that contention: "The truth is, however much it may be disguised, that this one day of rest is a purely religious idea ... whether it be the Friday of the Mohammedan, the Saturday of the Israelite, or the Sunday of the Christian...." ( Id. at p. 509.)
Justice Burnett agreed with Terry, and in his concurrence declared that "when there is no ground or necessity upon which a principle can rest but a religious one, then the [California] Constitution steps in and says that you shall not enforce it by authority of law. " ( 9 Cal. at p. 513 , italics in original.) He continued, "it is clear that the scope and purpose of the Constitution was to assert the great, broad principle of religious freedom for all — for the believer and the unbeliever." ( Ibid. )
Justice Field, in dissent, used a dichotomy comparable to that employed by the dissent in the instant case. On the one hand he argued that the Sunday closing law dealt with "business matters, not religious duties ... only a rule of civil conduct." ( 9 Cal. at p. 519 .) Then, to the contrary, he defended the religious content, insisting that "Christianity is the prevailing faith of our people; it is the basis of our civilization; and that its spirit should infuse itself into and humanize our laws, is [] natural...." ( Id. at pp. 523-524.)
*909 As Field's biographer, Carl Brent Swisher, wrote, this case tells much about Field, although "Its value for this purpose is limited by the fact that his ideas undoubtedly changed from time to time." (Swisher, Stephen J. Field: Craftsman of the Law (1963) p. 81.)
When Ex parte Andrews (1861) 18 Cal. 678 , came before the court, Justices Baldwin and Cope had succeeded Terry and Burnett. Totally ignoring stare decisis, they joined Field in upholding a subsequent legislative enactment on Sunday closing. [2]
For additional emphasis, in 1879 the delegates to the state constitutional convention of that year amended article I, section 4, to provide that in California the free exercise of religion shall be "guaranteed," not simply "allowed." The words of the member offering the amendment demonstrate the delegates' concern about religious freedom and the separation of church and state: "The word `allowed' conveys the idea that the right of government to disallow or deny exists. Now, sir, I deny that any Government or any power on earth has a right to grant or deny freedom of religious belief. No such power exists, and where it is attempted to be enforced, it is simply despotism." (3 Debates & Proceedings, Cal. Const. Convention 1878-1879, p. 1171 (remarks of Mr. O'Sullivan).)
The strong desire of the framers of the California Constitution for governmental neutrality in matters of religion is also evidenced by the adoption in 1879 of what is now article XVI, section 5, of the California Constitution (hereafter article XVI, section 5), which forbids governmental "aid of any religious sect, church, creed or sectarian purpose." This clause has aptly been called "the definitive statement of the principle of government impartiality in the field of religion." ( 37 Ops.Cal.Atty.Gen. 105 , 107 (1961).)
Further proof of the framers' intent to build a Jeffersonian wall of separation between church and state in California is found in article IX, section 8, of our charter, also adopted in 1879, forbidding both support for "sectarian and denomination schools" and the teaching of sectarian and denominational *910 doctrine in public schools. This provision among others was relied on by Attorney General Webb when he issued an opinion in 1903 that Bible reading in our public schools was unconstitutional — almost 60 years before the United States Supreme Court ruled prayer in public school to be unconstitutional. ( Engel v. Vitale (1962) 370 U.S. 421 [ 8 L.Ed.2d 601 , 82 S.Ct. 1261 , 86 A.L.R.2d 1285 ].)
II
Defendant Morongo Unified School District's religious invocations and benedictions violate both article I, section 4, and article XVI, section 5. I discuss each clause in turn.
Article I, section 4
Article I, section 4, provides, "Free exercise and enjoyment of religion without discrimination or preference are guaranteed.... The Legislature shall make no law respecting an establishment of religion." To be sure, the establishment clause of this section is virtually identical to its federal counterpart. [3] But the free exercise clause (hereafter the preference clause) of article I, section 4, is without parallel in the federal Constitution. The Attorney General has emphasized the broad scope of the preference clause: "It would be difficult to imagine a more sweeping statement of the principle of governmental impartiality in the field of religion." ( 25 Ops.Cal.Atty.Gen. 316 , 319 (1955).) Our case law has also recognized the strength of this clause, and acknowledged that in some instances it might warrant a separation of church and state more strict than that called for in the federal Constitution. As we stated in Fox v. City of Los Angeles (1978) 22 Cal.3d 792, 796 [ 150 Cal. Rptr. 867 , 587 P.2d 663 ], under article I, section 4, "Preference thus is forbidden even when there is no discrimination. The *911 current interpretations of the United States Constitution may not be that comprehensive."
In Fox , we ruled unconstitutional the display of a large Latin cross on a city hall. We pointed out that the walls of city hall were not used as bulletin boards; and we reasoned that "To illuminate only the Latin cross ... does seem preferential when comparable recognition of other religious symbols is impracticable." ( Fox v. City of Los Angeles, supra, 22 Cal.3d at p. 797 .) We rejected the city's rationalization that illumination of the cross during both Latin and Eastern Orthodox holidays constitutes "interfaith recognition" that endows the illumination of the cross with a secular purpose because of the indisputable proreligious and sectarian effect of the city's actions: "We cannot conclude here that the City, particularly as to Easter holidays, did not `promote ... such spiritual content.' Easter crosses differ from Easter bunnies, just as Christmas crosses differ from Christmas trees and Santa Claus." ( Id. at p. 798.)
The preference clause was also partly relied on in Feminist Women's Health Center, Inc. v. Philibosian (1984) 157 Cal. App.3d 1076 [ 203 Cal. Rptr. 918 ]. There, the court held unconstitutional the Los Angeles District Attorney's plan to bury aborted fetuses at a memorial park that had agreed to permit a religious organization to hold a memorial ceremony. The court stressed that the preference clause looks to the effects, not the intent, of the governmental action. As the court stated: "Whatever the district attorney's motive, a preference will be objectively demonstrated if the fetuses are delivered to [the burial site] in these circumstances. As the concurring opinion observed in Fox : `We must never forget that the religious freedom of every person is threatened whenever government associates its [power] with one particular religious tradition. The threat today may seem small, but the breach in principle is large.' ( Fox v. City of Los Angeles, supra, at p. 805.)" ( Id. at p. 1092.)
In Mandel v. Hodges (1976) 54 Cal. App.3d 596 [ 127 Cal. Rptr. 244 , 90 A.L.R.3d 728 ], the court held unconstitutional an order by the Governor to close state offices between noon and 3 p.m. on Good Friday, partly on preference clause grounds. The court reasoned that the Governor's Good Friday order would produce both of the results that the clause prohibits: "Because it has appointed an exclusively Christian holy day as a paid `holiday' for all pertinent purposes affecting state offices and employees, it amounts to `discrimination' against all non-Christian religions and `preference' of those which are Christian." ( Id. at p. 617.)
From these decisions, we learn that the preference clause seeks to prevent government from giving any advantage to religion in California. The *912 relevant inquiry is whether government has granted a benefit to a religion or religion in general that is not granted to society at large. Once government bestows that differential benefit on religion, it has acted unconstitutionally in this state. [4]
Thus the issue is whether the challenged program of the Morongo Unified School District establishes an unconstitutional preference in violation of article I, section 4. I conclude that it does. The use of a theistic prayer to "solemnize" a high school graduation confers a benefit on a particular form of religious expression by granting it a special, rather exalted, place at the commencement of an important and otherwise secular ceremony. This form of prayer, and the religious world view that underlies it, is thereby invested with the prestige with which the importance of the occasion endows it. Further, the selection of a member of the clergy for the express purpose of performing a religious act — a prayer — clearly grants a preferential benefit to religion and to a particular religion. Such a practice is therefore unconstitutional under article I, section 4.
Article XVI, section 5
Morongo Unified School District's religious invocation also violates article XVI, section 5. That section provides in pertinent part, "Neither the Legislature, nor any county, city and county, township, school district or other municipal corporation, shall ever ... grant anything to or in aid of any religious sect, church, creed, or sectarian purpose." As with article I, section 4, this clause has been interpreted broadly: "The section [] forbids more than the appropriation or payment of public funds to support sectarian institutions. It bans any official involvement, whatever its form, which has the direct, immediate, and substantial effect of promoting religious purposes." ( California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 605, fn. 12 [ 116 Cal. Rptr. 361 , 526 P.2d 513 ].)
In Priest , we recounted the history of article XVI, section 5: "An examination of the debates of the constitutional convention which drafted the *913 Constitution of 1879 indicates that the provision was intended to insure the separation of church and state and to guarantee that the power, authority, and financial resources of the government shall never be devoted to the advancement or support of religious or sectarian purposes." ( California Educational Facilities Authority v. Priest, supra, 12 Cal.3d at p. 604; see also Fox v. City of Los Angeles, supra, 22 Cal.3d 792, 802-803 (conc. opn. of Bird, C.J.).) We held that legislation through which colleges could obtain financing for improving facilities at a lower rate of interest than would otherwise be available through conventional financing sources was not inconsistent with the provision because "The section has never been interpreted ... to prohibit a religious institution from receiving an indirect, remote, and incidental benefit from a statute which has a secular primary purpose." (12 Cal.3d at p. 605.)
On the other hand, in California Teachers Assn. v. Riles (1981) 29 Cal.3d 794 [ 176 Cal. Rptr. 300 , 632 P.2d 953 ], we relied on article XVI, section 5, to invalidate legislation authorizing public school districts to lend secular textbooks to parochial school students. We rejected decisions of the United States Supreme Court suggesting that a statute is insulated from challenge if a child will be aided by an expenditure of public money (the "child benefit" theory), reasoning that the school itself received a benefit that could not be characterized as indirect, remote or incidental. ( Id. at p. 810.) In doing so, we set forth a two-part test for analyzing the validity of governmental aid under article XVI, section 5: we consider first whether the aid is direct or indirect, and second whether the nature of the aid is substantial or incidental. (See Note, Rebuilding the Wall Between Church and State: Public Sponsorship of Religious Displays Under the Federal and California Constitutions (1986) 37 Hastings L.J. 499 , 532.)
Here, the Morongo Unified School District invites to its graduation ceremonies Christian clergy who pray in religious terms. As explained above, the use of such prayers provides direct and exclusive benefit to one religion "in the intangible form of prestige and power" ( Fox v. City of Los Angeles, supra, 22 Cal.3d at p. 802 (conc. opn. of Bird, C.J.)), and discriminates against those who prefer other religions or no religion.
Moreover, I cannot find that this benefit to religion is merely incidental. In California Teachers Assn. v. Riles, supra, 29 Cal.3d 794 , we distinguished the textbook loan program from generalized governmental services provided to all schools (i.e., fire and police protection) partly on the ground that the latter services have no doctrinal content. Here, however, it cannot be maintained that an invocational prayer at a high school graduation has no doctrinal content; indeed, this is precisely the purpose of prayer. As a result, prayers in public school ceremonies are viewed, by proponents and *914 opponents alike, as state endorsement of the religious views embodied in those prayers, and as a tacit rejection of inconsistent views. [5]
An Oregon court relied on a similar provision in its state Constitution to hold that a religious invocation in a high school commencement exercise violated article I, section 5, of the Oregon Constitution. ( Kay v. David Douglas Sch. Dist. No. 40 (1986) 79 Ore.App. 384 [ 719 P.2d 875 ].) [6] That clause provides, "No money shall be drawn from the treasury for the benefit of any religeous [ sic ] or theological institution, nor shall any money be appropriated for the payment of any religeous [ sic ] services in either house of the Legislative Assembly." Although the expenditure of public funds was minimal, the court reasoned that "the school district's affirmative decision directing that a prayer, rather than some other appropriate non-religious statement or reading, be included in this important school event conveyed the message that it had given its endorsement to prayer and to religion. The inclusion of the prayer would have crossed the line from the accommodation of religion to an impermissible appearance of sponsorship." ( 719 P.2d at p. 880 .)
I conclude that the religious invocations and benedictions in question here have a direct and immediate effect of promoting religious purposes in violation of article XVI, section 5.
Broussard, J., concurred.
ARABIAN, J., Concurring.
I concur in the majority holding that the First Amendment of the United States Constitution forbids religious *915 invocations and benedictions at public high school graduation ceremonies. I do not join in that portion of the opinion addressed to the California Constitution or in the separate concurring opinion of Justice Mosk which treats the same subject. While Justice Mosk is clearly correct in stating that the California Constitution may provide an independent source of protection to individual liberties, this is not a case in which we are compelled to look beyond the federal charter; the First Amendment as currently construed by the United States Supreme Court plainly forbids the prayers at issue here.
While conventional esta

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1196385. Public record. Not legal advice.