The opinion
ROSSMAN, J.,
dissenting.
Although I agree with the majority that the appropriate analysis for determining violations of Oregon’s “Establishment Clause,” Or Const, Art I, § 5, is the three-part test established by the United States Supreme Court in Lemon v. Kurtzman, 403 US 602 , 91 S Ct 2105 , 29 L Ed 2d 745 (1971), I do not agree that, on the facts before us, there is a violation in this case. Therefore, I must respectfully dissent.
In Eugene Sand & Gravel v. City of Eugene, 276 Or 1007 , 558 P2d 338 (1976), cert den 434 US 876 (1977), the Oregon Supreme Court adopted the Lemon three-part test for *397 analysis of questions under Article I, sections 2, 3 and 5, of the Oregon Constitution. In order to be constitutionally valid, governmental action must
(1) reflect a clearly secular purpose;
(2) have a primary effect (as distinguished from an incidental effect) that neither advances nor inhibits religion; and
(3) avoid excessive government entanglement with religion. 276 Or at 1012-13 .
When applying this test, it is important to note that the Oregon Supreme Court recognizes that drawing the line between government neutrality toward religion and government support of religion is a matter of degree. The analysis in these cases must retain some manner of flexibility. Oregon has adopted the philosophy that
“ * * Devotion to the great principle of religious liberty should not lead us into a rigid interpretation of the constitutional guarantee that conflicts with the accepted habits of our people.’ ” Eugene Sand & Gravel v. City of Eugene, supra, 276 Or at 1014 , (quoting McCollum v. Board of Education, 333 US 203, 256 , 67 S Ct 461 , 92 L Ed 649 (1948) (Reed, J., dissenting)).
With these basic principles in mind, I now turn to an application of the test to the facts before us.
(1) Secular Purpose
To meet the first prong of the Lemon test, governmental conduct must have a “clearly secular purpose.” The majority disposes of this issue by saying that prayer is “inherently religious” and that, therefore, in this case the purpose for which the invocation is used must necessarily be religious. This terse analysis fails, because it erroneously restricts itself to consideration of the nature of the conduct involved. 1 Even if prayer is, by its nature, religious, that is not the end of the *398 inquiry. The United States Supreme Court recognizes that to “[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation.” Lynch v. Donnelly, 465 US 668, 680 , 104 S Ct 1355 , 79 L Ed 2d 604 (1984). 2 Indeed, I find it hard to imagine that there would ever be an Establishment Clause challenge to anything that was not, at its core, religious.
The proper inquiry is not into the nature of the challenged conduct; the controlling issue is whether the purpose for which the religious activity is being used is clearly secular. In Eugene Sand & Gravel v. City of Eugene, supra, a large cross was being maintained on city property. The Supreme Court explained that the question was not whether the cross was a religious symbol, but whether, under the circumstances, the display of the cross on city-owned property satisfied the “clearly secular purpose” test. 276 Or at 1012 . Accordingly, we look at the purpose for which something of religious character is being used.
In order to discern the school’s intention in choosing an invocation to open the ceremony, we must review the evidence. Although the majority acknowledges that there is evidence that the purpose of the invocation is secular, the thrust of the majority’s approach is that the evidence is immaterial, because prayer is by its nature religious and, therefore, the purpose for which it is being used must necessarily be religious. 3 There may be more than one purpose for governmental action. The issue, however, is not whether one of the purposes is religious, but rather whether there is a “clearly secular purpose” as well. 4 There is no need to have an *399 exclusively secular purpose. Lynch v. Donnelly, supra, 465 US at 681 n 6. Conduct that is motivated in part by a religious purpose may satisfy the requirement. It must be invalidated, however, if it is “entirely motivated by a purpose to advance religion.” Wallace v. Jaffree, 472 US_, 105 S Ct 2479 , 86 L Ed 2d 29, 43 (1985) (emphasis supplied; footnote omitted). See also Lynch v. Donnelly, supra, 465 US at 680 (governmental conduct invalidated only where “activity was motivated wholly by religious considerations”); but cf. Stone v. Graham, 449 US 39 , 101 S Ct 192 , 69 L Ed 2d 199 (1980) (even though state had some secular objectives, posting of Ten Commandments in schools violated purpose test because religious purposes were dominant).
No one would question that the purpose of the commencement ceremony itself is secular: to provide a solemn occasion for the presentation of diplomas and other awards. The purpose for opening the ceremony with an invocation, then, must be viewed in that context. The school chose an invocation for various reasons. The principal of the high school testified that an invocation was chosen to add a note of dignity, decorum and solemnity to the occasion. He also recounted that the high school had traditionally used an invocation as a ceremonial, formal way of opening commencement exercises. The United States Supreme Court has indicated that certain government acknowledgments of religion serve “the legitimate secular [purpose] of solemnizing public occasions.” Lynch v. Donnelly, supra, 465 US at 693 (O’Connor, J., concurring). Tradition and history are also legitimate secular purposes for the use of prayer in public ceremonies. In Marsh v. Chambers, supra, although the Court did not specifically apply the three-part test, it upheld the practice of opening a state legislature with a prayer because of history and long tradition. Although I agree that defendants may have had some religious purpose for including an invocation in the commencement exercises, it is clear to me from the evidence that any such purpose was neither exclusive nor predominant. Therefore, because there were legitimate, clearly secular purposes shown by the evidence, I would find that defendants have satisfied the first requirement of the three-part test.
(2) Primary Effect
Next, governmental conduct may be invalidated when it has a primary effect, as opposed to an incidental *400 effect, that either advances or inhibits religion. The effect of governmental conduct should be viewed objectively and in the context in which it occurs. Conduct can have a clearly secular purpose, but if it actually advances or inhibits or, viewed objectively, would be perceived as advancing or inhibiting religion, it fails to pass constitutional muster. However, we must keep in mind that, when the effect merely happens to coincide or harmonize with the tenets of some religions, the constitutional guarantees are not violated. See Lynch v. Donnelly, supra, 465 US at 682 ; Marsh v. Chambers, supra, 463 US at 792. Even before its adoption of the three-part test, the Oregon Supreme Court recognized that Article I, section 5, of the Oregon Constitution does not prohibit the state from conferring any benefit upon religion. The principle of separation of church and state is not that strict; a certain amount of interplay is permissible. Dickman et al v. School Dist. 62C et al, 232 Or 238, 247 , 366 P2d 533 (1961), cert den 371 US 823 (1962).
It is the primary, and not any incidental, effect that is at issue. Viewing objectively the facts developed below, I would hold that the primary effect of the proposed invocation was not to advance or inhibit religion. The use of an invocation does not actually advance religion. The anticipated audience at the ceremony included honored seniors, their families and guests. The graduates 5 are on the brink of adulthood; parents and most of the guests are adults. There is little likelihood that the school’s use of an invocation would actually advance religion, because those who would hear it were of sufficient maturity that they were not readily susceptible to religious indoctrination. In Marsh v. Chambers, supra, the maturity of the audience was one factor considered by the court in upholding the use of prayers in state legislative chambers. 463 US at 792.
Neither would there be a perception that the school was advancing religion. The fact that a school employe, a senior teacher, was to give the invocation does not make the primary effect that of advancing religion. Indeed, use of clergy to offer an invocation in a similar situation would give more of *401 an impression of advancing religion, yet just such a practice has been upheld. 6 Because the purpose of commencement is not pedagogical, but merely ceremonial, the audience would not have arrived at the auditorium seeking instruction, and a short invocation would not be perceived as an attempt to advance religious teachings. In this case, there was no indication that the invocation opportunity was exploited to proselytize or to advance one or disparage any other faith or belief. The audience would leave the ceremony with the impression that they had witnessed a dignified and solemn occasion, not a religious service.
This once-a-year use of an approximately 90-second invocation is readily distinguishable from daily school prayer, which has been held to violate the Establishment Clause. 7 Many of the children involved in daily school prayer cases are much younger than these graduated seniors and much more impressionable. Their attendance at school is mandatory. Although some of the challenged school prayer laws allowed students to be excused if they or their parents so desired, a request to be excused needed to be sought affirmatively, and the mere request might stigmatize the student. The commencement exercises we review, however, are totally voluntary; 8 they are not a part of the school’s educational program. Students graduate whether or not they attend the ceremony. The commencement occurs but once a year, the invocation is a 90-second part of a two-hour ceremony, and a different audience is present each year. Although a repeated religious exercise such as daily school prayer might be coercive and give the impression that the state was encouraging religion, the commencement invocation here would be perceived, as it had throughout the history of the high school, as setting a solemn, dignified tone for the ceremony. Accordingly, while there may have been some incidental effect to advance religion, that was not the primary effect. Therefore, defendants have satisfied the second requirement.
*402 (3) Entanglement
Finally, governmental conduct must avoid excessive entanglement with religion. This requirement is violated if the government participates in an active manner in planning and organizing religious activities. Eugene Sand & Gravel v. City of Eugene, supra, 276 Or at 1023 . There is no serious challenge raised on this point. Defendants did not exercise any control over the content of the invocation. 9 The once-a-year ceremony did not involve any relations between local religious institutions and school officials, because clergy were not involved in the ceremony in any way. The teacher who was to deliver the invocation was not paid for her extra efforts, although she may have composed the invocation during work hours. These factors, along with the school’s rental of the auditorium for the ceremony, hardly reach a level of “excessive entanglement.” 10 Defendants have also satisfied the third and final requirement.
*403 On the basis of this proper application of the three-part test, I would hold that defendants are entitled to prevail. Accordingly, I would reverse.
I am well aware that the issue presented by this case weighs very heavily on all citizens of this state. It is capable of evoking one’s emotions as few others do. It is also a very troublesome one forjudges — trial or appellate — who are called upon to decide it. From my own perspective, I cannot help but reflect on all the apparent inconsistencies that abound regarding the permissible interaction between church and state. The illustrations are limitless of how religion and government have been and still are intertwined. Our brothers and sisters in the legislative bodies sitting less than a block away from this court begin each legislative session with a prayer. Even in our own branch of government, references to God are not forbidden. The United States Supreme Court opens every session with the supplication, “God save the United States and this honorable court.” State trial judges daily administer witness oaths invoking the name of God. Indeed, at this very court’s most recent investiture, the new judge’s clergyman offered a prayer. The executive branch of government issues coins and currency for nationwide use bearing the national motto “In God We Trust.” School children across the country repeat a pledge of allegiance that affirms that we are “one nation under God.” In view of this and other evidence of pervasive governmental tolerance for and, indeed, approval of religion, I find it hard to believe that the framers of this state’s constitution *404 would fear that this 90-second invocation could somehow threaten to weaken the metaphorical wall separating church and state.
I have deep respect for the majority and its strong conviction as to the constitutional correctness of its decision. However, I feel with equal conviction that the majority has failed to analyze the facts properly and to apply the test that the Oregon Supreme Court has adopted. As a result, it has decided the case erroneously. The facts show that there is no danger here of a governmental establishment of religion of the type which the constitution was meant to prevent. 11 As Justice Goldberg said, concurring in Abington School Dist. v. Schempp, 374 US 203, 308 , 83 S Ct 1560 , 10 L Ed 2d 844 (1963):
“It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.”
Respectfully, I dissent.
In this case, defendants concede that the invocation is a prayer and that it is a religious activity. In the absence of such a concession, I would first inquire into the nature of the conduct involved, here, prayer. The majority suggests that all prayer is “inherently religious.” I disagree. Whether something is “inherently religious” depends on one’s point of view. An invocation that takes the form of a prayer may have a dual nature: to some listeners it will be religious, while to others it will be merely ceremonial. However, because defendants concede that this prayer is a religious activity, we need not decide the issue.
Those federal courts that have considered Establishment Clause challenges to prayers do not automatically invalidate the activity simply because it is prayer, as the majority here would require. See, e.g., n 10, infra. The United States Supreme Court recognizes that prayer in a public setting may be unobjectionable when its use has a traditional, historical basis. Marsh v. Chambers, 463 US 783 , 103 S Ct 3330 , 77 L Ed 2d 1019 (1983).
This approach views the activity objectively. Although such a standard is appropriate when determining the effect portion of the test, it is not properly applied here. Subjective intent, while not necessarily determinative, is relevant to discern actual purpose. See Lynch v. Donnelly, supra, 465 US at 690 (O’Connor, J., concurring).
Even when the benefit to religion is substantial, the conduct may be constitutionally permissible if a secular purpose is demonstrated. Lynch v. Donnelly, supra, 465 US at 680 .
The students had already fulfilled the educational requirements and had officially graduated; the commencement exercises were merely a ceremonial way of publicly conferring the diplomas.
E.g., Stein v. Plainwell Community Schools, 610 F Supp 43 (WD Mich 1985).
See, e.g., Engel v. Vitale, 370 US 421 , 82 S Ct 1261 , 8 L Ed 2d 601 (1962).
Although I agree with the majority that the fact that attendance at the ceremony is voluntary is no “defense” to an Establishment Clause challenge, it is nonetheless one factor that should be considered when determining effect.
This is unlike the Regent’s Prayer invalidated in Engel v. Vitale, supra, where the state had composed an official prayer to be used in schools.
The majority, in footnote 3, mischaracterizes the evidence. The question put to Mr. Utz went not to the issue of control over content of the invocation, but to whether the majority rules in deciding the content of graduation ceremonies. The question was:
“Q. As a matter of fact, if every senior in the class but one wanted to have a Roman Catholic High Mass as part of graduation and only one objected, you would honor that objection, would you not?
“A. Well, you know, —
“Q'. You would not?
“A. Well, yes, I would honor that objection.”
There is, of course, a great difference between a Roman Catholic High Mass and a 90-second invocation.
The majority of courts that have addressed the issue of whether it is constitutional to include an invocation or benediction at a graduation ceremony where attendance is voluntary have found no violation of the Establishment Clause or Free Exercise Clause of the First Amendment. See Stein v. Plainwell Community Schools, supra (upheld the use of invocation and benediction in graduation ceremonies when they were traditionally delivered by students or clergy); Grossberg v. Deusebio, 380 F Supp 285 (ED Va 1974) (upheld use of invocation and benediction at commencement exercises where school’s past ceremonies had included similar activities, and senior class made decision to include them and paid expenses); Wood v. Mt. Lebanon Township School District, 342 F Supp 1293 (WD Penn 1972) (upheld use of invocation and benediction given by clergyman at graduation ceremony); Wiest v. Mt. Lebanon School District, 457 Pa 166, 320 A2d 362 , cert den 419 US 967 (1974) (Pennsylvania Supreme Court held invocation and benediction delivered by clergy did not violate either the Pennsylvania Constitution or the Establishment Clause of the First Amendment). At least one court has held the inclusion of an invocation or benediction at graduation violative of the First Amendment. See Graham v. Central *403 Community Sch. Dist. of Decatur, 608 F Supp 531 (SD Iowa 1985) (school board planned ceremony, at which Christian minister had delivered invocation and benediction for 20 years; court noted that prayer is inherently religious).
Plaintiffs cite Doe v. Aldine Independent School Dist., 563 F Supp 883 (SD Tex 1982), for the proposition that prayer at commencement exercises violates the Establishment Clause, but fail to note that in that case the prayer was a formal school prayer posted in large black letters over the entrance to the gymnasium and that it was recited or sung at pep rallies and athletic contests as well as at graduation ceremonies. The court found that the prayer violated the Establishment Clause, because it failed all three parts of the Lemon test. In Florey v. Sioux Falls School Dist. 49-5, 619 F2d 1311 (8th Cir 1980), the school board had adopted a policy statement and rules that allowed the observance of holidays having both a religious and secular basis. The rules also contained a provision permitting invocations and benedictions in commencement ceremonies. Although the court found no violation of the Establishment Clause, the plaintiffs challenged only the rules relating to observance of religious holidays, not those relating to the invocation and benediction.
The majority adds, in a footnote, that the commencement invocation also violates Article I, section 2, of the Oregon Constitution. If that holding is based on the fact that an identical analysis applies to challenges under Article I, sections 2, 3 and 5, I fail to see why section 3 is not mentioned. If the holding is not based on the three-part test, the majority should explain the basis for its conclusion.