Sands v. Morongo Unified School District

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 establishment clause doctrine may compel the majority holding, it does not adequately explain it. The question before us is not one of ephemeral interest, but belongs to the enduring historical theme of religious liberty and individual conscience. The present controversy reifies a debate over the proper relation between church and state which dates literally from the Puritans’ first fragile settlements in the New World. We do not enter that debate lightly, or unaware of the passionate beliefs upon which it draws. The duty of decision under which we labor, however, compels dispassion, and the risk of some inevitable criticism.

We are not unmindful that our holding invalidates a practice which has been accepted for many years, by many well-intentioned people, as morally, religiously, and legally inoffensive. It is common to justify such rulings, which may run counter to the majority will, on the ground that the animating concern of the Constitution and the courts is with the protection of minorities. That is no doubt true. I believe, however, that judicial decisions—even unpopular ones—serve a larger and, in a sense, more democratic purpose. At their best, such decisions both reflect and define public opinion and morality. It is important, therefore, to place before the people, as Thomas Paine might have said, the common sense of the subject, not merely in the idiom of the law, but in terms so plain, firm, and true as to compel their assent.

I.

We are a diverse nation, composed of persons with widely differing backgrounds and religious beliefs. The establishment clause serves, at a minimum, to preserve religious liberty and ensure domestic tranquility, by prohibiting official preference for one religion over another. In deciding whether a particular governmental practice threatens these basic values, it is critical that we view the issue from the perspective of the minority, be they discordant, harmonious or eloquently silent, for they compose a large segment of the symphony which is America.

Thus, we must ask whether, under prevailing authority, the prayers in question, though seemingly innocuous to the majority of citizens, neverthe *916 less offend cherished beliefs of others, or convey, as Justice O’Connor has written, “a message to nonadherents that they are outsiders, not full members of the political community.” (Lynch v. Donnelly (1984) 465 U.S. 668, 688 [ 79 L.Ed.2d 604, 619 , 104 S.Ct. 1355 ] (conc. opn. by O’Connor, J.), italics added.)

So viewed, it is undeniable that the prayers at issue do reflect mainstream Judeo-Christian beliefs. Accordingly, those who shun public prayer, others who reject the concept of a patriarchal “Lord” or “Father,” and still others who adhere to non-Western religions, or no religion at all, may view such publicly sanctioned prayers as offensive, if not indeed an official endorsement of religion. Thus viewed, the prayers in question could not pass muster under the second prong of the United States Supreme Court’s Lemon test. (Lemon v. Kurtzman (1971) 403 U.S. 602 [ 29 L.Ed.2d 745 , 91 S.Ct. 2105 ].)

Nevertheless, as explained hereafter, I believe that the spirit of religious freedom immanent in the Constitution and our common history supports the prayers at issue. Therefore, while constrained to concur in the majority holding, I cannot endorse its underlying reasoning and analysis.

II.

In addition to minority rights, there is a second issue of fundamental importance which must concern us here. Historically, the “first and most immediate purpose [of the establishment clause] rested on the belief that a union of government and religion tends to destroy government and to degrade religion.” (Engel v. Vitale (1962) 370 U.S. 421, 431 [ 8 L.Ed.2d 601 , 82 S.Ct. 1261 , 86 A.L.R.2d 1285 ].) Madison, in his famous Memorial and Remonstrance Against Religious Assessments, condemned the notion that a public officer “may employ Religion as an engine of civil society,” and elsewhere observed that “Religion flourishes in greater purity, without than with the aid of Government.” (Padover, The Complete Madison: His Basic Writings (1953) pp. 302, 308-309.) Thus, the establishment clause “stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.” (Engel v. Vitale, supra, 370 U.S. at pp. 431-432 [ 8 L.Ed.2d at p. 608 ].)

The present controversy demonstrates that Madison’s concerns were well founded. In arguing that their purpose is to “solemnize” high school graduation ceremonies, defendants and amici curiae stress the “civil” or “nonsectarian” nature of benedictions and invocations. The irony cannot go unnoticed, however, that the government’s justification for the use of religious *917 rituals to achieve secular ends finds expression in terms which disparage religion. (Engel v. Vitale, supra, 370 U.S. at p. 431 [ 8 L.Ed.2d at p. 608 ].) In essence, the government defends the references to “our Lord” and “Father” on the ground that the terms constitute little more than insipid symbols of a shared secular culture.

If, however, prayer does serve to solemnize an occasion, then we must recognize and identify it for what it is—a religious practice—and ask whether it has a legitimate constitutional place in a public high school graduation ceremony.

Historically, religion and prayer have always played a role in our most cherished public ceremonies. Washington, in his first inaugural address, invoked “the benign Parent of the Human Race in humble supplication” and asked for “His divine blessing . . . .” (Speeches of the American Presidents (Podell & Anzovin) p. 5.) Lincoln, at Gettysburg, predicted that from the tragedy and sacrifice of the Civil War “this Nation, under God, shall have a new birth of Freedom . . . .” (Id. at p. 193.) Modern times have not diminished the impulse or voice, on our most solemn public occasions, to invoke the divinity for blessing and guidance.

Here, of course, we are not concerned with a presidential inaugural, but rather a public high school graduation. Clearly, the two occasions are historically distinct. Inaugurals have changed relatively little over the course of 200 years; public education has experienced a continuous revolution. Thus, unlike the opening of a legislative session (Marsh v. Chambers (1983) 463 U.S. 783 [ 77 L.Ed.2d 1019 , 103 S.Ct. 3330 ]), 18th-century practice offers little direct guidance in determining the constitutionality of prayer at a high school graduation.

If history then offers no binding precedent, it does provide perspective. 1 Public prayer is an American tradition. It has occupied, as the above examples illustrate, a long and honorable place in our public lives. Washington was a man of broad universalist beliefs; Lincoln, through his innate compassion and humanity, appealed to the “better angels of our nature . . . .” (Podell & Anzovin, supra, at p. 181.) Each, at a critical moment in history, *918 sought to bind the nation, to plant seeds of union in a period of discord. Certainly not all who heard them then, or who read their words today, believe in the one Christian God; yet their message speaks powerfully to each and every one of us.

Lincoln and Washington innately understood that the American spirit does not simply “tolerate” religious, racial, or cultural differences; it takes pride in them. They are our source of strength and the hope for our future. Respect for, and pride in, our diversity extends to a high school graduation. That a Catholic priest, a Jewish rabbi, a Presbyterian minister or a member of any other cloth may appear before a gathering of students, parents and teachers from many different faiths and briefly seek the blessing of his or her God does not reflect an official religious bias, but rather celebrates an enlarged and liberal policy of religious freedom which “gives to bigotry no sanction.” (Washington’s Letter to the Hebrew Congregation of Newport, R.I., Aug. 17, 1790.)

Our national experience teaches that the mutual independence of church and state is the most conducive system to religious freedom and social and political tranquility. Public prayer does not threaten that harmony or the liberty of conscience which underlies it. On the contrary, it is through such occasions that we reinforce and celebrate the rich diversity that has made us a great and noble people.

Accordingly, while I concur in the judgment, I do so reluctantly, with the hope and expectation that the high court will soon endorse another view. 2

As Chief Justice Lucas observes in his concurring opinion, the First Amendment expresses certain core principles for which history may provide a useful guide. In this regard, it is worth noting that religious images have long permeated our national culture, not only through such recent expressions as the pledge of allegiance and our national currency, but literally from the English settlers’ first days in the New World, as cities and towns such as Newark, Providence, and New Haven eloquently attest. California, having experienced early influence from the Spanish missionaries, is replete with religious identification—San Francisco, Los Angeles, Sacramento, San Jose, Santa Barbara, and San Diego are but a few of the innumerable examples.

See Weisman v. Lee (D.R.1 1990) 728 F.Supp. 68 , affirmed (1st Cir. 1990) 908 F.2d 1090 , certiorari granted sub nom. Lee v. Weisman (1991)_ U.S._ [ 113 L.Ed.2d 240 , 111 S.Ct. 1305 ],