Petition for Writ of Certiorari — Morongo Unified School District v. Sands

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In the Supreme Court

OF THE

United States

OCTOBER TERM, 199]

MoORONGO UNIFIED SCHOOL DISTRICT, et al.,

Petitioners,

VS.

JAMES SANDS, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

CHRISTIAN MARK KEINER*

J. STANTON BAIR

KEITH J. BRAY

BIDDLE & HAMILTON

1121 L Street, Suite 510

Sacramento, CA 95814

(916) 442-7401

Attorneys for Petitioners

* Counsel of Record

BOWNE OF SAN FRANCISCO INC + ISO NINTH ST ¢ SF CA 94103 + (415) 664 2300

QUESTION PRESENTED

Does a public school district practice, of fifty year duration at

its oldest high school site, of allowing students to continue the

inclusion of invocations and benedictions within the traditional

high school graduation ceremony violate the First Amendment to

the United States Constitution?

PARTIES TO THE PROCEEDING IN

THE SUPREME COURT OF CALIFORNIA

The parties to the proceeding in the Supreme Court of Califor-

nia were as follows: plaintiffs/respondents (now respondents)

James Sands and Jean Bertolette, as taxpayers. Respondents will

be referred to collectively as “Sands.” Defendants/appellants

below (now petitioners) were the Morongo Unified School Dis-

trict; Gary Bowman; Mel Flint; Chuck Kaiser, Ruth Long; and

Lolita Mendoza, in their official capacities as members of the

Governing Board of the Morongo Unified School District; and

Joseph Boeckx, in his official capacity as Superintendent of the

Morongo Unified School District. Petitioners will be referred to

collectively as ““MUSD.”

ill

TABLE OF CONTENTS

SE ee

Parties To The Proceeding In The California Supreme

EG le PS a

cae chp asec cased s's sees sive o's

ee ee aa aa Suis bk Vv SW ks boa se er ww K eo

Relevant Constitutional And Statutory Provisions ......

A. School District Graduation Ceremonies And Trial

a CaaS ke oe nS eee kines uses

B. The C. fornia Court Of Appeal Decision.......

C. The Supreme Court Of California Decision .....

Reasons For Granting The Writ.....................

The Majority Result Of The Supreme Court Of California

Was Narrowly And Solely Based Upon The Supremacy

Clause And The Second Lemon “Primary Effect”

Prong, A “Test” Directly At Issue Before This Court In

Lee And The Subject Of Conflicting Decisions In State

Courts Of Last Resort And United States Courts Of

Appeal When Applied To Graduation Invocations And

ee en ele eevee ee eke ee

The Supreme Court Of California Majority Result Con-

flicts With The First Amendment And Misapplies Es-

tablishment Clause Decisions Of This Court ........

A. Traditional Invocations And Benedictions Do Not

Violate The First Amendment Under Principles Of

The Establishment Clause, Or Any Test Set Forth

el ah ss o5 p> seb ce be 8 oe Ko

NY NH NN =

SIH NW WN

TABLE OF CONTENTS

Page

B. The Plurality Opinion Of The Supreme Court Of

California Fundamentally Erred By Not Address-

ing The Lemon “Secular Purpose” Prong, Thereby

Improperly Reversing The Court Of Appeal Which

Applied A Complete And Sensitive Lemon In-

quiry, Thus Illustrating Current Difficulties In Ap-

plying Lemon To Determine Permissible And

Impermissible Speech In Ceremonial Circum-

PE SR ERG Nebr e SEO MARS ORR ER ee ea TEE 20

I Re ee ran tel owe oe 30

APPENDIX A

Opinion of the Supreme Court of California with con-

curring and dissenting opinions.................... A-1

APPENDIX B

Opinion of the California Court of Appeal, Fourth

District, Division Two, with concurring opinion ...... A-108

APPENDIX C

Order of the Supreme Court of California Denying

Pee tN II So en Ces vae pec e se cderen A-134

APPENDIX D

ee RINE IN S555 co wo os se ¥ hsv au kena neaknn A-136

TABLE OF AUTHORITIES

Cases

Page

Abington School District v. Schemp, 374 U.S. 203

fo | Pee. Serer re rrr ree re arr 15, 25

Albright v. Board of Educ., No. 90-C-639G (D. Utah May

Sy EE 45 Sahn 5 6k a hoes COARARE REO 9

Bennett v. Livermore Unified School Dist., 193 Cal.App.3d.,

ROE 2, ZOE Cae. BES CIGD neve ccs paanssutascees 9

Board of Education v. Mergens, U.S. __, 110 S.Ct.

SE REO. Cia ack Ol eae aaa ceea aes eee 17, 18

Bogen v. Doty, 635 F.2d. 110 (8th Cir. 1990) ........... 23

County of Allegheny v. American Civil Liberties Union, 492

oe ye ere rer Tee rere passim

Doe v. Aldine Indep. School Dist., 563 F.Supp. 883 (S.D.

Sk, PEER cca ccs uch danceue been wee ee 9

Edwards v. Aguillard, 482 U.S. 578 (1987) .................

kxeaa eee eee ena a ee ae 15, 16, 20, 25, 26, 27

Engle v. Vitale, 370 U.S. 421 (1962) ................. 15, 16

Everson v. Board of Education, 330 U.S. 1 (1947)........ 15

Graham v. Central Community School Dist., 608 F.Supp.

SSE CB SO Wie kkk bn ako oe ee 9

Grossberg v. Deusebio, 380 F.Supp. 285 (E.D. Va. 1974) 9

Jones v. Clear Creek Indep. School Dist., 903 F.2d. 416 (Sth

POET ET eT Se noe Rey se 9, 19, 23

Kay v. David Douglas School Dist., 79 Or.App. 384, 719,

P.2d. 875 (1986) rev'd on other grounds, 303 Or. 574,

738,, P.2d. 1389 (1987), cert. denied, 484 U.S. 1032... 9

Lee v. Weisman, (Cert. granted March 18, 1991, ____ US.

, 59 U.S.L. Week 3635, Docket No. 90-1014 ... passim

Lemon v. Kurtzman, 403 U.S. 602 (1971) ............ passim

Lundberg v. West Monona Community School Dist., 731

-. BEF eo 8. | reer reer rer re er 9

Lynch v. Donnelly, 465 U.S. 668 (1984) ............. passim

Marsh v. Chambers, 463 U.S. 78 (1983) ............. passim

North Carolina Civil Liberties Union v. Constangy, 751

F Seem. S52 (OD. TORR ho ss sac sscens cawesces 9

Sands, et al. v. Morongo Unified School District, et al., 214

Cal.App.3d. 45 (1989), [262 Cal.Rptr. 452] ........ passim

TABLE OF AUTHORITIES

CASES

Page

Sands, et al. v. Morongo Unified School District, et al., 53

Cal.3d. 863 (1991), [281 Cal.Rptr. 34] 2.0.0.0... passim

Stein v. Plainwell Community Schools, 822 F.2d. 1406 (6th

SO EE Nc bc ob ck bs WoL b Ocoee caadeen vei tee 9, 18,19

Stone v. Graham, 449 U.S. 39 (1980) ................ 15, 25

Wallace v. Jaffree, 472 U.S. 38 (1985).....................

PALE e Tee TE TOO ORE. For ee 15, 18, 19, 20, 22, 25, 26

Weisman v. Lee 728 F.Supp. 68 (D.R.I. 1990) .......... 27

Weisman v. Lee, 908 F.2d. 1090 (Ist Cir. 1990)......... 9

Wiest v. Mt. Lebanon School Dist., 457 Pa. 166, 320 A.2d

362, 365-66, cert. denied, 419 U.S. 967 (1974) ........ y

Wood v. Mt. Lebanon Township School Dist., 342 F.Supp.

7 £4 2 8S ers Se rrr are 9

Zorach v. Clausen, 343 U.S. 306 (1952) .............. 14, 30

Constitutions, Statutes and Regulations

28 U.S.C.

NS BEUTOND Ta oe videenee eet ee 2

42 U.S.C.

aT ERT tare eM Bek AI ee rh Oe 4

California Civil Code

a go anaes 17

ES ohn in « paxccckeh cu te eee 17

ES ei yi eGo are kc Cee eee 17

California Education Code

I tt oa se ee A 3 17

ee Ae 17

California Government Code

Nee ee eco cla! ee a 17

California Vehicle Code

LE AR RE AL og A a ere

California Penal Code

BARN nn RAR I ane Bi oh CAGE a at as nce bola 17

Vil

TABLE OF AUTHORITIES

CONSTITUTIONS, STATUTES AND REGULATIONS

Page

California State Constitution

tan shu sae aec ue eae ee 5

es Oe EE Sk rh oe ce wk 4a Re le ee 17

pe ERIS SR a a erie MeN 5

Pe ID Bia icv cence cee caus kg es 5

United States Constitution

First Amendment, Establishment Clause............ passim

rrr rere re _.. passim

Misceilaneous

Los Angeles Times, February 7, 1991, “Court Asked to Bar

Prayers at Public High School Graduations,” Section |,

pages A-3, A-26, February 7, 1991, at p. A-26 ........

Yale Law Journal, Volume 92: 499, (1983) p. 504-509,

“Note, the Constitutional Dimensions of Student Initiated

Religious Activity in Public High Schools”.....

Academic Healdry in America, Sheard, Kevin (Northern

Michigan College Prep., Marquette, 1962) ............

“Abraham Lincoln, Mystic Chords of Memory, a Selection

of Lincoln’s Writings;” “Farewell Address at Springfield,”

A, TO oi ic eS wees a wnd tects dee ravaes

“It Can Be Done, Poems of Inspiration,” George Sully and

Co., (Morris and Adams Editors), p. 47, “Duty”, Emer-

we, TERRI WHORE os wii cae cc ee en sews scene tans

“Selected Writings of Ralph Waldo Emerson”, Modern

Library, (Atkinson, B. Editor), p. 815, “Self-Reliance”,

OUI II FOUND 65.656 6 se ec is oe Saye se naeven es

No.

In the Supreme Court

OF THE

United States

OCTOBER TERM, 199]

MorRONGO UNIFIED SCHOOL DISTRICT, et al.,

Petitioners,

VS.

JAMES SANDS, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

MUSD respectfully prays that a writ of certiorari issue to either

review the decision of the Supreme Court of California herein, or

in the alternative, to hold this petition for further consideration

based upon the upcoming decision of this Court in Lee v.

Weisman, a case on point. (Cert. granted March 18, 1991, —__

US. 59 U.S.L. Week 3635, Docket No. 90-1014 (hereinaf-

ter “Lee’™))

OPINIONS BELOW

The decision of the Supreme Court of California ts reported as

Sands, et al. v. Morongo Unified School District, et al. (hereinafter

“Sands IT’) 53 Cal.3d. 863 (1991), [281 Cal.Rptr. 34] and is

printed as Appendix A (App. A, pp. A-1, et seq.) hereto.’ The

decision of the California Court of Appeal, Fourth Distnict,

Division Two, is reported as Sands, et al. v. Morongo Unified

School District, et al. (hereinafter “Sands ’) 214 Cal.App.3d. 45

‘“App.” refers to the Appendix.

(1989), [262 Cal.Rptr. 452] and is printed as Appendix B hereto.

(App. B, pp. A-108, et seq.)

JURISDICTION

The California Supreme Court’s decision was filed on May 6,

1991. (App. A, p. A-1) A timely petition for rehearing was

denied on June 27, 1991. (App. A, pp. A-134-135) The jurisdic-

tion of this court is invoked under 28 U.S.C. Section 1257(a).

RELEVANT CONSTITUTIONAL PROVISIONS

This case involves the Establishment Clause of the First

Amendment to the United States Constitution which provides:

“Congress shall make no law respecting an establishment of

religion.”

STATEMENT OF THE CASE

A. School District Graduation Ceremonies and Trial Court

Litigation

MUSD consists of eleven school sites, which includes two high

schools (Twenty-Nine Palms High and Yucca Valley High) and

two alternative/continuation high schools (Sky High and Monu-

ment High), located in San Bernardino County, California.’ An

invocation and benediction have been included in the Twenty-

Nine Palms High School graduation ceremony since 1937, at

Yucca Valley High School singe 1968, at Monument High

School since 1978, and at Sky High School since 1977. The

purpose of including the invocation and benediction in those

ceremonies was to continue a historical tradition which added to

the ceremonial nature of the graduation ceremony and which had

> (Clerk's Transcript (hereinafter “CT”) 180-181, 316-317, 464-465)

Direct citations are to the record set forth in the Clerk’s Transcript on

Appeal. More general factual descriptions are set forth in two California

Supreme Court justices’ opinions and the Court of Appeal decision as

follows: Appendix A, pp. A-2-4, A-34-36; Appendix B, pp. A-109-111.

the support of the community.’ In 1985 at Yucca Valley High

School, Mr. Doug Morgan, Youth Pastor of the Evangelical Free

Church, delivered a thirty to sixty second invocation and Ms.

Char Whitaker, a MUSD teacher, delivered the benediction

which lasted approximately twenty seconds. (App. B, p. A-109)

In 1985 both Yucca Valley High speakers were chosen by 2

process in which the senior class president made the selection

while planning the graduation ceremonies with assistance by the

vice-principal of the high school. The principal has the right of

final selection of graduation speakers. In 1985 at Twenty-Nine

Palms High School graduation, Mr. Ron Duvally, a Presbyterian

minister, presented the invocation and Father Michael Stern, a

Catholic priest, delivered the benediction. At Twenty-Nine Palms

High School in 1985, the speakers for the graduation ceremony

were selected by a student selection committee consisting prima-

rily of the senior class president and representatives from the

associated student body, with the students making the final

selection regarding all speakers. At Monument High School in

1985, the Reverend Charles Smoot delivered both the invocation

and benediction and at Sky High, Mr. John Brewer, a Pastor with

the Free Methodist Church of Yucca Valley, presented both the

benediction and invocation.’

At Yucca Valley High School and Twenty-Nine Palms High

School the graduation ceremonies last approximately one and

one-half hour. At Sky Continuation High School and Monument

Continuation High School the ceremonies last approximately

forty-five minutes. At Yucca Valley High School and Twenty-

Nine Palms High School the graduation ceremony has included

the following stages: a processional; a presentation of colors; the

Pledge of Allegiance to the flag; the playing of the national

anthem; the invocation, a welcome by the class president, two

senior student speakers; a musical selection; another student

speaker, two salutary addresses by students; a musical selection; a

student singer; the valedictorian address by a student; the presen-

tation of the honor student; the presentation of the senior class;

* (CT 180, 317, 465)

* (CT 180-182, 317-318, 465-466)

the acceptance of the senior class; the roll call and presentation of

“diplomas;” a musical selection by a choir, a student singer,

benediction; and recessional.°

Graduation ceremonies in MUSD are voluntary and atten-

dance is not required. Graduation ceremonies are held after

school hours and at the time of the graduation cerernony the

students are legal graduates and alumni of MUSD. Diplomas are

not issued at the graduation ceremony and all students, whether

or not they attend the ceremony, pick up their diplomas at a later

time. All speakers in the graduation ceremony, including employ-

ees of MUSD, do so as volunteers and are not compensated for

their participation. Direct MUSD funds are expended solely for

the printing of programs and security. Attendance at graduation is

usually limited by ticket to graduating seniors and immediate

family only.°

On March 14, 1986, the ACLU Foundation of Southern

California by way of letter to the Superintendent informed

MUSD of its position that invocations and benedictions during

high school graduation ceremonies violated the federal and state

constitutions. Communications between the parties thereafter

established that MUSD intended to continue the traditional

practice of allowing a brief invocation and benediction at gradua-

tion ceremonies. On or about June 2, 1986, Sands, as taxpayers’

represented by the ACLU Foundation of Southern California,

filed a complaint in San Bernardino County Superior Court

seeking a temporary restraining order, and declaratory and injunc-

tive relief prohibiting MUSD from conducting religious invoca-

tions and benedictions at public high school graduation

ceremonies, on the basis of an asserted violation of the First

Amendment to the U.S. Constitution,* 42 U.S.C. Section 1983,”

* (CT 182-183, 318-319, 466-467)

* (CT 183-184, 319-320, 467-468)

"(CT 2)

* (CT 7)

* (CT 8)

and independent California state constitutional grounds.'° On

June 2, 1986, the trial court denied Sands’ temporary relief

request and set the matter for hearing on June 10, 1986 regarding

a preliminary injunction.'' On June 10, 1986, the trial court

denied Sands’ request for preliminary injunction. During the

subsequent Yucca Valley High graduation ceremony held on

June 12, 1986, Pastor Trip Kimball delivered the invocation

(App. A, p. A-50), and MUSD teacher Bob Hockett delivered

the benediction (App. A, p. A-51).

After cross-motions for summary judgment, on March 17,

1988, the tral court entered judgment in favor of Sands prohibit-

ing and enjoining MUSD and their agents from “directly con-

ducting, or attempting to conduct, religious invocations and

benedictions at any public school ceremonies in the District.”

(App. D, pp. A-136-137)

B. The California Court of Appeal Decision

MUSD timely filed notice of appeal on April 1, 1988. After

briefing and oral argument, the California Court of Appeal,

Fourth Appellate District, Division Two, by decision issued Sep-

tember 19, 1989, upheld the constitutionality of the challenged

practice pursuant to both the First Amendment and state consti-

tution, reversing in full the trial court judgment. (App. B, pp.

A-108-133) The Court of Appeal reviewed applicable Establish-

ment Clause precedent, including this Court’s decision in Marsh

'° California Constitution, Article I, Section 4; Article IX, Section 8:

Article XVI, Section 5

''After the temporary injunction ruling, MUSD legal counsel sug-

gested Superintendent Boeckx ensure that the status quo be maintained

pending the preliminary injunction hearing. Superintendent Boeckx

communicated this conversation to the Principal and Vice-Principal at

Yucca Valley High School. Although the class president expressed

concerns, the two faculty member speakers previously selected by

students to deliver the invocation and benediction were changed to

include one clergyperson to preserve the previous year’s status quo. (CT

186-189, 193-194, 432-434, 458-463, 474-480) (App. B, pp. A-110-

111)

v. Chambers (hereinafter “Marsh’’) 463 U.S. 78 (1983) and then

determined it must apply the three part test articulated by this

Court in Lemon v. Kurtzman (hereinafter “Lemon”) 403 U:S.

602 (1971). (App. B, pp. A-112-116) The appellate court there-

after analyzed the challenged practice pursuant to all three

Lemon prongs, and held traditional non-sectarian, non-denomina-

tional graduation invocations and benedictions permissible under

the First Amendment. (App. B, pp. A-11!16-122) The Court of

Appeal also held the practice permissible under the relevant

California independent state constitutional grounds. (App B, pp.

A-122-123)

C. The Supreme Court of California Decision

Sands timely filed a petition for review with the Supreme Court

of California, which was granted on December 6, 1989. After

briefing and oral argument on February 6, 1991, a divided

Supreme Court of California on May 6, 1991 issued a decision in

which six of the seven justices wrote opinions, with the result that

a majority of the court reversed the appellate court’s ruling. A

plurality of the court held in an opinion by Associate Justice

Kennard that the challenged practice violated the second and

third Lemon prongs, as well as independent California state

constitutional grounds. (App. A, pp. A-1-22) Associate Justices

Panelli and Baxter wrote separately in dissent and would uphold

traditional invocations and benedictions on both federal and state

grounds. (App. A, pp. A-69-107) In key separate concurrences,

both California Chief Justice Lucas and Associate Justice Ara-

bian agreed with the plurality ruling that the practice violated the

second “primary effect” Lemon prong based upon this Court’s

previous rulings binding pursuant to the Supremacy Clause, noted

the upcoming review by this Court in Lee, and wrote to support

the challenged invocation and benediction practice. (App. A, pp.

A-23-51, 64-68) Both California Chief Justice Lucas and Justice

Arabian explicitly left undecided the independent California state

grounds (App. A, pp. A-24, 45-49, 64), thus the decision of the

Supreme Court of California rests solely upon federal grounds.

(App. A, pp. A-45, 85)"

REASONS FOR GRANTING THE WRIT

California Supreme Court Chief Justice Lucas aptly stated,

“This is a difficult and important case” (App. A, p. A-23), and,

“This case lies at the crossroads between public instruction and

public ceremony. As such, it affords an opportunity to re-examine

basic principles and values underlying the religion clauses of the

First Amendment.” (App. A, p. A-24)

This Court is currently undertaking such re-examination of

basic principles and values in Lee, a case directly on point

involving invocations and benedictions in public school graduation

ceremonies. In California, a majority of the 1,009 public school

districts have in the past allowed students to continue the tradi-

tional inclusion of invocations and benedictions within their

graduation ceremonies.'’ As set forth infra, the majority result in

Sands II which barred the practice in California was narrowly and

solely based upon this Court’s precedent involving the second

“primary effect” prong of the Lemon test, and the Supremacy

Clause to the U.S. Constitution. However, in concurrence both

California Supreme Court Chief Justice Lucas and Associate

Justice Arabian analyzed relevant First Amendment principles

and would, if free to do so, have upheld the challenged practice.

Further, as set forth in Part II below, the Supreme Court of

California majority below has decided an issue of federal law in a

way that conflicts with controlling decisions of this Court. The

graduation practice is constitutional, as was held by the Court of

Appeal beiow (supported in theory as well by four justices on the

Supreme Court of California), and the Sands // plurality opinion

'? “Therefore, our judgment does not rest on the state constitution;

any resolution of the state constitutional issues will necessarily await

another day.” (citations omitted (App. A, p. A-45), Sands I/ (Lucas,

C.J., in concurrence) )

'* Los Angeles Times, February 7, 1991, “Court Asked to Bar Prayers

at Public High School Graduations,” Section 1, pages A-3, A-26, at

p. A-26.

which broadly held the practice unconstitutional fundamentally

erred in its approach, thereby erroneously reinstating an over-

broad injunction. This Court’s decision in Lee regarding both the

appropriate Establishment Clause test and its application to

public school graduation ceremonies will directly impact the

Sands II decision, and the status of graduation ceremonies

throughout California. MUSD thus respectfully petitions that

issuance of the writ for certiorari, or holding the petition for

further consideration based upon Lee, is imperative for the orderly

evolution of the law and the practical avoidance of confusion and

conflict in future California public school graduation ceremonies.

THE MAJORITY RESULT OF THE SUPREME COURT OF

CALIFORNIA WAS NARROWLY AND SOLELY BASED

UPON THE SUPREMACY CLAUSE AND THE SECOND

LEMON “PRIMARY EFFECT” PRONG, A “TEST” DI-

RECTLY AT ISSUE BEFORE THIS COURT IN LEE AND

THE SUBJECT OF CONFLICTING DECISIONS IN

STATE COURTS OF LAST RESORT AND UNITED

STATES COURTS OF APPEAL WHEN APPLIED TO

GRADUATION INVOCATIONS AND BENEDICTIONS

In Sands II, six justices of the Supreme Court of California

crafted analytic opinions of length and breadth regarding the

constitutionality of traditional invocations and benedictions at

public high school graduation ceremonies. Key opinions on the

issue of federal constitutionality discussed either different prongs

of the Lemon test, or different alternative tests altogether. Key

opinions also extensively analyzed and differed on First Amend-

ment basic principles and values.'* (App. A, pp. A-1, et seq.)

'* Associate Justices Mosk and Panelli also thoroughly analyzed

pertinent state constitutional history and precedent to reach conflicting

conclusions. (App. A, pp. A-52-63, 85-94) It is clear a majority of the

court did not render any holding on independent state grounds. (App. A,

pp. A-45)

The Sands IJ plurality opinion flatly held the challenged prac-

tice unconstitutional based upon both the second “primary effect”

and third “entanglement” Lemon prongs. (App. A, pp. A-7-18)'°

Although expressing “doubts,” the plurality determined that it

need not address the first “secular purpose” Lemon prong (App.

A, p. A-7), and declined to apply Marsh, Stein v. Plainwell

Community Schools, 872 F.2d. 1406 (6th Cir. 1987), or any

“coercion” analysis. (App. A, pp. A-18-20) The plurality opinion

notes that in its analysis of recent opinions the test set forth in

Lemon still has continued vitality in this Court. (App. A, pp. A-

6-7) The plurality opinion states:

'S This decision thus represents yet another ruling of a state court of

last resort that conflicts with other decisions of such courts, and United

States Courts of Appeals, on the precise issue of public school gradua-

tion invocations and benedictions. Under the standards set in this

Court’s Rule 10.1(b)(c), this Court should exercise its discretion to

review this case, as it has chosen to do in Lee, or hold for further

consideration. (Compare Jones v. Clear Creek Indep. School Dist., 903

F.2d. 416 (Sth Cir. 1991) (upholding graduation invocations and

benedictions) with Weisman v. Lee, 908 F.2d. 1090 (Ist Cir. 1990). A

number of other federal and state courts have considered the issue, and

their conclusions have been mixed. Cases upholding graduation invoca-

tions and similar practices are: Stein v. Plainwell Community Schools,

822 F.2d. 1406 (6th Cir. 1987); Albright v. Board of Educ., No. 90-C-

639G (D. Utah May 15, 1991); Grossberg v. Deusebio, 380 F.Supp. 285,

289 (E.D. Va. 1974); Wood v. Mt. Lebanon Township School Dist., 342

F.Supp. 1293, 1294-95 (W.D. Pa. 1972); Wiest v. Mt. Lebanon School

Dist., 457 Pa. 166, 320 A.2d. 362, 365-66, cert. denied, 419 U.S. 967

(1974). Cases invalidating graduation invocations and similar practices

are: Lundberg v. West Monona Community School Dist., 731 F.Supp.

331 (N.D. lowa 1989); Graham v. Central Community School Dist.,

608 F.Supp. 531 (S.D. Iowa 1985); Doe v. Aldine Indep. School Dist.,

563 F.Supp. 883 (S.D. Tex. 1982); Bennett v. Livermore Unified School

Dist. 193 Cal.App.3d., 1012, 238 Cal.Rptr. 819 (1987); Kay v. David

Douglas School Dist., 79 Or.App. 384, 719, P.2d. 875 (1986), rev'd on

other grounds, 303 Or. 574, 738, P.2d. 1389 (1987), cert. denied, 484

U.S. 1032; see also North Carolina Civil Liberties Union v. Constangy,

751 F.Supp. 552 (W.D.N.C. 1990) (judge’s practice of opening daily

sessions with recitation of brief prayer was unconstitutional ).)

“Thus, the Lemon test has remained controlling law for

twenty years. We are required to decide federal constitu-

tional cases on the law as it presently exists. Accordingly, we

apply the Lemon test in this case. (App. A, pp. A-6-7;

citation omitted, see also footnote 3)

In dissent, Associate Justice Baxter applied the Lemon test

(App. A, pp. A-97-104) and concluded that, “The majority goes

too far in relying on Lemon v. Kurtzman to support a ban on the

inclusion of any ‘religious prayer’ in a high school graduation

ceremony.” (App. A, p. A-103) Associate Justice Panelli in

dissent extensively analyzed precedent regarding permissible ac-

commodation of religious beliefs in public life (App. A, pp. A-69-

78), as well as the Lemon test (App. A, pp. A-78-85), to find no

federal violation. (App. A, pp. A-94-96)

The concurrences of California Chief Justice Lucas and Asso-

ciate Justice Arabian were thus determinative. Associate Justice

Arabian pertinently stated:

‘“...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.

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.” (App. A, p.

A-65; emphasis in original, citations omitted)

Associate Justice Arabian thereafter concluded:

“Our national experience teaches that the mutual indepen-

dence 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 reluc-

tantly, with the hope and expectation that the high court will

soon endorse another view.” (App. A, p. A-68; footnote

citing Lee omitted)

California Chief Justice Lucas initially determined:

“Reluctantly, | 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 deci-

sions of the United States Supreme Court. Based on my

reading of the relevant Supreme Court authority, I conclude

that the Morongo Unified School District’s practice of al-

lowing 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 that ‘advances... religion.’ ”

(App. A, p. A-23, citations omitted.)

California Chief Justice Lucas thereafter fully and thoughtfully

reviewed key principles underlying the religion clauses (App. A,

pp. A-24-34), evaluated the facts and considered the context,

(App. A, pp. A-34-39), and applied such principles, including

those set forth in Marsh, and County of Allegheny v. American

Civil Liberties Union (hereinafter “County of Allegheny”) 492

U.S. 573 (1989) (App. A, pp. A-39-44), to decide:

“Like a scientific theory, a legal principle or fact must

account for all the data, i.e., both church-state disengage-

ment and benign recognition of religion and religious ideas in

American constitutional law and civic culture. When govern-

ment 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 govern-

ment in sectarian favoritism, financial aid to church institu-

tions, 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.”

(App. A, p. A-44)

Thus, the Supreme Court of California majority perceived its

result was dictated by this Court’s precedent and the Supremacy

Clause, and more narrowly was based upon the two key concur-

ring justices’ views regarding specific precedent involving the

second “primary effect” prong of the Lemon test. Both justices, if

free to do so, would have upheld the traditional practice. Since

that graduation practice, as well as the appropriate Establishment

Clause test (which may specifically include analysis of the second

Lemon prong) is now before this Court in Lee, MUSD respect-

fully asserts the orderly evolution of the law'® and avoidance of

disruptive uncertainty necessitates either review -“ the Supreme

Court of California decision, or holding this petition for disposi-

tion in light of the result reached in Lee."’

'© As with Associate Justice Arabian, California Chief Justice Lucas

explicitly noted this Court’s pending decision in Lee, recognized Sands

IIT might also be considered (App. A, p. A-23), and stated regarding

state constitutional grounds, “Because of the Supreme Court’s decision

to grant certioran in Lee, 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.” (App. A, pp. A-48, citations

omitted, see also deferral discussion at pp. A-45-49) The California

state constitutional issues remain to be Wecided. MUSD respectfully

asserts it would be far better for such state issues to be directly

addressed after Lee, and possible review and remand from this Court,

rather than MUSD, or any other California public school district(s),

being forced to litigate through the lower courts to once again reach the

Supreme Court of California. Any such delay could only result in

unfortunate confusion during future California graduation ceremonies.

'’ The Questions Presented in Lee, as stated in the Brief for Petition-

ers, are:

1. Do school authorities violate the Establishment Clause by

allowing a speaker at a public junior high or high school graduation

THE SUPREME COURT OF CALIFORNIA MAJORITY

RESULT CONFLICTS WITH THE FIRST AMEND-

MENT AND MISAPPLIES ESTABLISHMENT CLAUSE

DECISIONS OF THIS COURT

A. Traditional Invocations And Benedictions Do Not Violate

The First Amendment Under Principles Of The Establish-

ment Clause, Or Any Test Set Forth By This Court

The First Amendment to the United States Constitution pro-

vides in pertinent part:

“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof... .”

The First Amendment does not mandate an “absolute separa-

tion” between church and state, or in this case, between religion

and government in the schools.'* MUSD asserts this Court has

not adopted a rigid “absolutist” premise, but rather has exten-

sively analyzed particular situations before it in light of the history

and purpose of the First Amendment.'” In Lynch v. Donnelly

ceremony to offer an invocation and a benediction that acknowl-

edge a deity?

2. Whether direct or indirect government coercion of religious

conformity is a necessary element of an Establishment Clause

violation?

'*“Both the general language of the First Amendment and its

interpretation by the courts suggests that bight 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.’ ” (Sands

II (Lucas, C.J., in concurrence, citations omitted) (App. A, p. A-24))

'' “The requirement of neutrality inherent in that [Lemon] formula-

tion has sometimes been stated in categorical terms . . . these statements

must not give the impression of a formalism that does not exist. Taken to

its logical extreme, some of the language quoted above would require a

relentless extirpation of all contact between government and religion.

But that is not the history or purpose of the Establishment Clause.

(hereinafter “Lynch”) 465 U.S. 668 (1984) this Court specifi-

cally rejected an “absolutist” approach.” Earlier in Zorach vy.

Clausen 343 U.S. 306 (1952), this Court stated that:

“The First Amendment, however does not say that in every

and all respects there shall be a separation of church and

State. Rather, it studiously defines the manner, the specific

ways, in which there shall be no concert or union or depen-

dency one on the other. That is the common sense of the

matter. Otherwise the State and religion would be aliens to

each other, hostile, suspicious, and even unfriendly.’

Government policies of accommodation, acknowledgment, and support

for religion are an accepted part of our political and cultural heritage.”

(County of Allegheny, supra, 492 U.S. at 656-657 (examples, citations

omitted) (Kennedy, J., concurring in part, dissenting in part) )

*°“This history may explain why the court consistently has declined

to take a mgid, absolutist view of the Establishment Clause. We have

refused to construe the religious clauses with a literalness that would

undermine the ultimate constitutional objective as illuminated by his-

tory. (Citations omitted, emphasis in orginal) In our modern, complex

society, where traditions and constitutional underpinnings rest on and

encourage diversity and pluralism in all areas, an absolutist approach in

applying the Establishment Clause is simplistic and has been uniformly

rejected by the court. Rather than mechanically invalidating all govern-

mental conduct or statutes that confer benefits or special recognition to

religion in general or to one faith—as an absolutist approach would

dictate—the court has scrutinized challenged legislation or official

conduct to determine whether, in reality, it establishes a religion or

religious faith or tends to-do so.” (Lynch, supra, 465 U.S. at 678)

*! The Zorach Court continued:

“... Prayers in our legislative halls; the appeals to the Almighty

and the messages of the Chief Executive, the proclamations making

Thanksgiving Day a holiday; ‘so help me God’ in our courtroom

oaths—these and all other references to the Almighty that run

through our laws, our public rituals, our ceremonies would be

flouting the First Amendment. A fastidious atheist or agnostic

could even object to the supplication with which the Court opens

each session: “God save the United States and this Honorable

Court.” We would have to press the concept of separation of church

In Everson v. Board of Education, 330 U.S. 1 (1947) this

Court enunciated these principles:

“The ‘establishment of religion’ clause of the First Amend-

ment 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 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.”** (Id. at 15-16)

Perhaps the fundamental inquiry regarding a challenged prac-

tice is a determination “whether, in reality it establishes a religion

or religious faith, or tends to do so.”

MUSD also respectfully asserts school day instructional cases

are not legally, factually, or as a matter of policy on point with

graduation ceremonies.” Justice Brennan’s concurrence in Ed-

and State to these extremes to condemn the present law on

constitutional grounds.” (/d. at 312-313)

See County of Allegheny, supra, 492 U.S. at 591; also cited by

Sands II plurality (App. A, p. A-5)

** Lynch, supra, 465 U.S. at 678 (citation omitted)

** Engle v. Vitale, 370 U.S. 421 (1962); Abington School District v.

Schemp, 374 U.S. 203 (1963); Stone v. Graham, 449 U.S. 39 (1980);

Wallace v. Jaffree, 472 U.S. 38 (1985) Even in an early case involving

mandatory prayer and the school day, this Court recognized a distinction

between proscribed religious exercise and permissible ceremonial

practice:

“There is of course nothing in the decision reached here that is

inconsistent with the fact that school children and others are

wards v. Aguillard 482 U.S. 578 (1987) perhaps most succinctly

summarized the key legal and policy grounds underlying this

Court’s expressed concern with religious exercises and the in-

structional school day:

“The Court has been particularly vigilant in 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 be-

cause of the student’s emulation of teachers as role models

and the children’s susceptibility to peer pressure.” (Edwards,

supra, at 583-584, citations omitted)

None of these key legal or policy concerns that have prompted

this Court to find Establishment Clause violations in the school

setting, ¢.g., state coercive authority, the closed nature of a

classroom, advancement of particular religious views in such

classrooms, impressionable children of all age and grade levels,

involuntary attendance, or role modeling and peer pressure, are

present in student planned voluntary graduation ceremonies held

once a year with a limited audience, which includes parents.

Moreover, society itself as exemplified by common law or statute

does not view young adults either entering high school by way of

commencement or attending a farewell high school graduation

ceremony to be so “impressionable” as to consider a brief invoca-

officially encouraged to express love for our country by reciting

historical documents such as the Declaration of Independence

which contain references to the Deity or by singing officially

espoused anthems which include the composer's professions of faith

in a Supreme Being, or with the fact that there are many manifesta-

tions in our public life of belief in God. Such patriotic or ceremonial

occasions bear no true resemblance to the unquestioned religious

exercise that the State of New York has sponsored in this in-

stance.” (Engle, supra, 370 U.S. at 436, footnote 21)

tion or benediction in the context of a ceremony an “establish-

ment” or “advancement” of religion.”°

Many such young adults at eighteen years old will soon be

college freshmen. Also, by way of example, in California all

eighteen-year-old young adults are deemed mature and responsi-

ble enough to: hold public office,” vote,”’ and marry, enter into a

contract, and own real property.” Even prior to age eighteen,

California young adults have been judged responsible enough to:

operate a motor vehicle with consent,”’ be suspended or expelled

from school as a result of their own actions,” be capable of

committing crimes,’' obtain confidential medical services without

parental consent,” or authorize health treatment in certain cir-

cumstances.’’ Moreover, academic commentators have noted that

in other contexts involving political, social, and moral issues

courts have supported the view of young adults as capable of

exercising mature discretion, and that adolescent psychological

** In Board of Education v. Mergens ___. U.S. ___, 110 S.Ct. 2356

(1990), this Court recognized the maturity level of high school students

stating, “We think that secondary school students are inature enough

and are likely to understand that a school does not endorse or support

student speech that it merely permits on a nondiscriminatory basis.” (/d.

at 2372)

** California Government Code Section 1020

*’ California Constitution, Article II, Section 2

* California Civil Code Section 25

* California Vehicle Code Section 17701

” California Education Code Section 48900, et seq.

' California Penal Code Section 26

** California Education Code Section 46010.1

* California Civil Code Sections 25.9, 34.5

research suggests that high school students are capable of inde-

pendent critical judgment.”

Thus, in the context of a traditional and long-standing gradua-

tion ceremony” this Court’s mandatory daily classroom prayer

and devotional exercise cases are not per se dispositive. The

Supreme Court of California plurality below erred by disregarding

this Court’s admonitions to analyze all applicable principles and

precedent regarding the Establishment Clause and our society's

historical practices.

No evidence supports the proposition that invocations and

benedictions as a long-standing element in the traditional gradua-

tion ceremony either establish a state religion or tend to do so.”

The history of the First Amendment, the intent of the Framers,

the actions of the First Congress, and societal practices dating

from the adoption of the Bill of Rights, support this particular

ceremonial practice.’ Moreover, as thoughtfully analyzed in the

opinions of California Supreme Court Chief Justice Lucas (App.

A, pp. A-36-45), and Associate Justice Panelli (App. A, pp. A-

73-77) the application of the principles set forth by this Court in

Marsh and Lynch regarding acknowledgment of this nation’s

religious heritage render the challenged practice constitutional.

(See also Stein v. Plainwell Community Schools 822 F.2d. 1406

(6th Cir. 1987) applying Marsh) Given the ceremonial nature of

“ See: “Note, the Constitutional Dimensions of Student Initiated

Religious Activity in Public High Schools,” Yale Law Journal, Volume

92: 499, (1983) p. 504-509, cited in Mergens, supra, 110 S.Ct. at 2372

See Sheard, Kevin, Academic Healdry in America, (Northern

Michigan College Prep., Marquette, 1962); Sands // (Panelli, J., in

dissent) (App. A, p. A-77)

* Lynch, supra, 465 U.S. at 678

” The parties and amici in Lee have extensively briefed the historical

background of the religion clauses, the intent of the Framers, and

societal practices such as that at issue. MUSD supports the historical

analysis set forth by Lee in his brief for the petitioners and reply brief, as

well as that of the U.S. Solicitor General as amicus curiae. (See also

Marsh, supra, 463 U.S. at 786-792, Lynch, supra, 465 U.S. at 673-678,

and Wallace, supra, 472 U.S. at 92-107 (Rehnquist, J., in dissent)

the graduation, there is no plausible reason why the California

Legislature opens each session with an invocation, but the same

practice is barred at California graduations.” Further, although

the Supreme Court of California plurality opinion declined to

apply any “coercion analysis” (App. A, pp. A-13-15), as set forth

supra no elements of “coercion,” such as are present regarding

religious exercises, or substitutes for same, during each instruc-

tional school day are present in a graduation ceremony.” Finally,

MUSD respectfully asserts that a complete and sensitive Lemon

analysis, such as that undertaken by the California Court of

Appeal below (App B, pp. A-116-122), also demonstrates the

traditional practice is constitutional.” Certainly, the record

reveals no effect upon Sands’ political standing in the community,

or personal religious choices, by the continuation of the invoca-

tions and benedictions in the traditional ceremony.

For such reasons, MUSD respectfully asserts the challenged

practice of allowing students to continue non-sectarian, nonde-

nominational invocations and benedictions as an element within

** “Some who trouble to read the opinions in these cases will find it

ironic—perhaps even bizarre—that on the very day we heard arguments

in the cases, the Court’s session opened with the invocation for Divine

protection. Across the park a few yards away, the House of Representa-

tives and the Senate regularly open each session with a prayer. These

legislative prayers are not just one minute in duration, but are extended,

thoughtful invocations and prayers for divine guidance.” ( Wallace,

supra, 472 U.S. at 84-85 (Burger, C.J., in dissent) )

” “Our cases disclose two limiting principles: government may not

coerce anyone to support or participate in any religion or its exercise;

and it may not in the guise of avoiding hostility or callous indifference.

give direct benefits to religion in such a degree that it in fact establishes

a ‘state religion or religious faith, or tends to do so.” (citation omitted)

(County of Allegheny, supra, 492 U.S. at 659 (Kennedy J., concurnng

in part, dissenting in part) )

” See also Jones v. Clear Creek Independent School District 903 F 2d

416 (Sth Cir. 1991); Stein, supra, 822 F.2d. at 1410-1417 (Wellford, J.

in dissent); Sands // (Panelli, J., in dissent) (App. A, pp. A7%-85),

Sands I] (Baxter, J., in dissent) (App. A, pp. A-97-104)

the traditional graduation ceremony is_ constitutionally

permissible.

B. The Plurality Opinion of the Supreme Court of California

Fundamentally Erred By Not Addressing the Lemon “Secu-

lar Purpose” Prong, Thereby Improperly Reversing the

Court of Appeal Which Applied a Complete and Sensitive

Lemon Inquiry, Thus IIlustrating Current Difficulties in

Applying Lemon to Determine Permissible and Impermissi-

ble Speech in Ceremonial Circumstances

MUSD respectfully asserts that the Sands // plurality opinion

is fundamentally flawed in that it declined to apply the Lemon

“secular purpose”’ test, thereby also illustrating continuing diffi-

culties in application of the Lemon test. This Court has previously

specified the importance of the “secular purpose” Lemon prong

and held that:

“.. . no censideration of the second or third criteria is

necessary i: a Statute does not have a clearly secular pur-

pose.” (Wallace, supra, 472 U.S. at 56; Edwards, supra, 482

U.S. at 585.)

Thus it would appear, after review of at least the ‘secular

purpose” prong, state action is held to violate the Establishment

Clause if it fails to meet any of the three prongs. (Edwards, supra,

482 U.S. at 583.)*' Further, if the Lemon test continues to guide

Establishment Clause analysis as asserted in the Sands II plural-

ity opinion, it does so as clarified by the “endorsement” analysis.*”

*' However, Chief Justice Burger has noted that, “In any event, our.

responsibility is not to apply tidy formulas by rote, our duty is to

determine whether the statute or practice at issue is a step towards

establishing a state religion.” (Wallace, supra, 472 U.S. at 89 (Burger,

C.J. in dissent); see also /d. at 110-112 (Rehnquist, J., in dissent) )

* See Lynch, supra, 465 U.S. at 690 (O'Connor, J., concurring):

County of Allegheny, supra, 492 U.S. at 592-594, 605-606, 609 (also

O’Connor, J., concurring at 623-637); see also: “Even if Lynch did not

control, | would not commit this Court to the test applied by the

majority today. The notion that cases arising under the Establishment

Clause should be decided by an inquiry into whether a “reasonable

The Lemon “endorsement” analysis is highly context specific and

each government practice must be judged in its “unique circum-

stances” and “history and ubiquity.’*’ The standard is the “rea-

sonable observer.” In County of Allegheny, supra, Justice

Blackmun wrote regarding Lemon and “endorsement:”

“In Lemon v. Kurtzman, supra, the Court sought to refine

these principles by focusing on three ‘tests’ for determining

whether a government practice violates the Establishment

Clause. Under the Lemon analysis, a statute or practice

which touches upon religion, if it is to be permissible under

the Establishment Clause, must have a secular purpose; it

must neither advance nor inhibit religion in its principal or

primary effect; and it must not foster an excessive entangle-

ment with religion. This trilogy of tests has been applied

regularly in the Court’s later Establishment Clause cases.

Our subsequent decisions further have refined the definition

of governmental action that unconstitutionally advances re-

ligion. In recent years, we have paid particularly close atten-

tion to whether the challenged governmental practice either

has the purpose or effect of ‘endorsing’ religion, a concern

that has long had a place in our Establishment Clause

jurisprudence.” (/d., at 592, footnote, citations omitted,

emphasis added. )

oes 99 ‘

observer’ may ““fairly understand” government action to ““sen[d] a

message to nonadherents that they are outsiders, not full members of the

political community,” is a recent, and in my view most unwelcome,

addition to our tangled Establishment Clause jurisprudence.” (/d. at

668) (Kennedy, J., concurring in part, dissenting in part. )

** County of Allegheny, supra, 492 U.S. at 606 (see also O'Connor, J.,

concurrence at 625, 629-631 )

“ County of Allegheny, supra, 492 U.S. at 631 (O'Connor, J.,

concurrence )

Earlier in Wallace, supra, Justice O’Connor noted in pertinent

parts as follows regarding the “endorsement” analysis and “pur-

pose and effect”:

“I do believe, however, that the standards announced in

Lemon should be re-examined and refined in order to make

them more useful in achieving the underlying purpose of the

First Amendment... .

Last term, I proposed a refinement of the Lemon test with

this goal in mind....

Under this view, Lemon's inquiry as to the purpose and effect

of a statute requires courts to examine whether government’s

purpose is to endorse religion and whether the statute actu-

ally conveys a message of endorsement... .

The task for the court is to sort out those statutes and

government practices whose purpose and effect go against

the grain of religious liberty protected by the First Amend-

ment.” (Wallace, supra, 472 U.S. at 69-70 (O’Connor, J.,

concurrence), emphasis added.)

The Sands I/ plurality thus fundamentally errs by failing to

apply or address the first “secular purpose” prong of the Lemon

test. The Sands IJ plurality simply notes, “Although we have

doubts whether the government sponsored prayers at issue here

pass the “secula: purpose” test, that question need not be ad-

dressed ...”, because the opinion concludes the Lemon “primary

effect” and “entanglement prong” are violated. (App. A, p. A-6)

MUSD respectfully asserts not to address this question is funda-

mental error, not only because the initial Lemon test was not

applied, but since this omission thereby also flaws the “primary

effect” analysis.

By not addressing the first prong of Lemon, the Sands I]

plurality ignored two important and careful California Court of

Appeal Sands | “secular purpose” findings. First, the appellate

court determined that “the purpose of the graduation ceremony

itself is wholly secular.” (App. B, p. A-118) Second, it examined

the invocation and benediction opening and closing the gradua-

tion ceremony in the context of that secular purpose. (App. B, p.

A-118) The appellate court concluded that the challenged prac-

tice in context serves the legitimate secular purpose of solem-

nizing the public occasion and adds a “note of dignity and

decorum to the ceremony and serves to focus the audiences’

attention.” (App. B, p. A-118; citing Lynch, supra, and Bogen v.

Doty 635 F.2d. 110 (8th Cir. 1980) )*

The California Court of Appeal thereafter analytically applied

the second “primary effect” Lemon prong and determined that

although standing alone prayer may appear to have the “purpose”

or “effect” of advancing religion, in the context of the graduation

ceremony (i.e. it did not occur in a repetitive or pedagogical

context, was not part of a program of calculated indoctrination,

but was a brief and peripheral part of a ceremonial function) the

practice was constitutional. (App. B, pp. A-118-121)*°

** This solemnizing purpose of invocations was also noted by Justice

Blackmun in County of Allegheny when discussing Justice O’Connor’s

Lynch concurrence harmonizing the Marsh result with “endorsement”

principles:

“The concurrence, in contrast, harmonized the result in Marsh

with the endorsement principle in a mgorous way, explaining that

legislative prayer (like the invocation that commences each ses-

sion of this Court) is a form of acknowledgment of religion that~

‘serve[s], in the only wa[y] reasonably possible in our culture, the

legitimate secular purposes of solemnizing public occasions, ex-

pressing confidence in the future, and encouraging the recognition

of what is worthy of appreciation in society.” The function and

history of this form of ceremonial deism suggest that ‘those

practices are not understood as conveying government approval of

particular religious beliefs..”’ (County of Allegheny, supra, 492

U.S. at 573-574, footnote 46, citations omitted.)

“ As noted by California Supreme Court Chief Justice Lucas, “Al-

though a strict application of the Lemon test may invalidate the practice

at issue here, a more sensitive and balanced application of these

underlying principles [government disengagement from religion and

benign recognition as part of culture] may sustain it.” (Sands // (Lucas,

C.J., in concurrence) (App. A, p. A-49); see also Jones, supra, 903

F.2d. at 419-423) MUSD also agrees with the emphasis of the Court of

24 oa

MUSD respectfully asserts the Sands IJ plurality opinion thus

fundamentally erred by divorcing the “primary effect” prong from

any analysis or conclusion regarding the initial “secujiar purpose”

Lemon prong. The plurality opinion simply did not address the

“secular purpose” prong, nor did it address the long-standing

“history and ubiquity” of the statewide or nationwide graduation

practice, nor did it analyze such invocations and benedictions in

their “unique circumstances,” or context.

This error was magnified in that the Sands // plurality ruled as

a matter of law. (App. A, p. A-9, footnote 5) Although appar-

ently recognizing that this record is wholly lacking any student or

other participant in an actual graduation ceremony objecting to

invocations and benedictions, the plurality opinion concludes as a

matter of law that:

“When a school district opens or closes the graduation

ceremony with prayer it sends a powerful message that it

approves of the prayer’s religious content”; and,

“‘a reasonable observer would view the inclusion of gradua-

tion prayers in an Official school ceremony as signifying

approval of the practice of prayer and the prayer’s religious

content. The message of sponsorship is unavoidable.” (App.

A, p. A-9, see specifically footnote 5.)

It must be asked how the Sands I] plurality opinion could

properly rule as a matter of law regarding the “primary effect” on

a hypothetical “reasonable observer” when the opinion ignores

the ceremonial context, as well as fails to address the secular

celebratory purpose which so impacts any effect during a cere-

mony? That this approach is fundamentally erroneous is also

illustrated by the plurality’s conclusion that:

“Moreover under the district’s logic, prayers at the beginning

of the school day would be constitutionally unobjectionable

solely because they would be part of an education experience

that is predominantly nonreligious. Yet prayers at the begin-

Appeal that “we find only non-sectarian invocations and benedictions

constitutional.”” Sands J (App. B, p. A-122)

ning of the school day have long been unconstitutional.”

(App. A, p. A-12, citation omitted.)

This point is incorrect as is made clear by brief application of

both Lemon “purpose and effect” prongs. First, with respect to

the school day, the overall state secular purpose is instruction of

pupils. Assuming momentarily no opinion on point from this

Court, what would be the asserted “secular purpose” of prayers,

invocations, or benedictions during the school day? If such pur-

pose were Claimed, to have credibility it would need to be asserted

in the context of the overall instructional purpose. Thus, pur-

ported “secular purposes” have actually included assertions of

proper instruction.*’ During the school day, this Court has denied

certain challenged statutes’ or practices’ purported “secular pur-

pose,” with the effect therefore of combining instruction and

religious practice to be an impermissible advancement of relig-

ion.** If, as in Wallace, supra, this Court finds there is no genuine

asserted instructional “‘secular purpose,” e.g., the purpose is to

return prayer to the school day, the majority has held the “secular

purpose” prong to be violated.”

In direct centrasi, with respect to traditional invocations and

benedictions at graduation ceremonies, MUSD has asserted, and

the Court of Appeal essentially held, that a genuine congruency

exists between both the secular celebratory purpose and the

secular solemnizing purpose, so that “historical and ubiquitous”

invocations or benedictions in the context of the graduation

ceremony do not have the “primary effect” of “advancing” or

*” See secular purposes asserted in: Stone v. Graham, 449 U.S. 39

(1980) “instruction on a fundamental legal code”; Abington School

District v. Schemp, 374 U.S. 203 (1963) “promotion of moral values, in

contradiction to the materialistic trends of our times, the perpetuation of

Our institutions, and the teaching of literature”; as cited in Edwards,

supra, at 589-90; See also Edwards, supra, at 592 “change the science

curnculum of public schools.”

** See Stone, supra, statutory posting of Ten Commandments; Abing-

ton, supra, practice of daily prayer, and Edwards, supra, statutory

teaching of “creationism” science.

* See Wallace, supra, at 56-57, statutory moment of meditation.

“endorsing” religion to a reasonable observer. This ceremonial

congruency between overall and specific purpose and primary

effect does not carry logically to the instructional school day.

MUSD has never asserted that it does.

The careful findings of the California Court of Appeal could

thus not be properly dismissed by the Sands I/ plurality without

applying or addressing the first “secular purpose” Lemon prong,”°

since it appears the initial “purpose and effect” prongs constitute

the Lemon “endorsement” inquiry.*' Nevertheless, as with much

Establishment Clause analysis, such “endorsement” principles

appear to be in a “state of flux.”** For example, it must be

respectfully noted that in County of Allegheny itself, this Court

did not actually review the “secular purpose” Lemon prong.” If,

as Justice Powell discussed in Wallace, supra, a key value of the

Lemon test in the past has been avoidance of “tad hoc”’ decision

making, such “ad-hoc” judicial choices appear to continue

based upon which test, or more specifically which prong of the

Lemon test, to emphasize or apply to given circumstances.*° This

* However, MUSD notes serious concerns regarding the “purpose

test” itself have been raised. (See Wallace, supra, 472 U.S. at 108-109

(Rehnquist, J., in dissent); Edwards, supra, 482 U.S. at 613-619

(Scalia, J., in dissent) )

*' County of Allegheny, supra, 492 U.S. at 592-594; Wallace, supra,

472 U.S. at 69-70: “the endorsement test is useful because of the

analytic content it gives to the Lemon-mandated inquiry into legislative

purpose and effect.” (O’Connor, J., concurring in judgment)

* Sands II (Lucas, C.J., in concurrence) (App. A, p. A-23)

*’ County of Allegheny, supra, 492 U.S. at 594, footnote 45 (Black-

mun, J., opinion)

(Wallace, supra, 472 U.S. at 63 (Powell, J., in concurrence) )

** “Unfortunately, it appears that cases such as this are decided not by

applying a test but by choosing which test to apply.” (Sands // (Panelli,

J. in dissent) (App. A, p. A-72))

uncertainty renders it extremely difficult for public agency coun-

sel to advise clients regarding what is, and is not, permissible.”

Finally, the Supreme Court of California plurality decision

affirmed the decision of the trial court, thereby reinstating an

overbroad injunction (App. D. pp. A-136-137) which fails, under

this Court’s case law, to delineate permissible speech from the

impermissible, sweeping overbroad into the problem of defining

“religious invocations and benedictions” at graduation.*’ Are

“ceremonial” invocations and benedictions permitted which are

not “religious?” Are clergy permitted to appear and speak, or are

clergy per se barred from the ceremony altogether? How is the

line drawn between “religious” and “non-religious” speech? In

this record, Ms. Whitaker’s invocation in 1985 (App. B, p. A-

109) has heretofore been deemed “non-religious,” whereas Pastor

Kimball and Mr. Hockett’s 1986 respective invocation and bene-

diction have been deemed “religious.” (App A, p. A-S0-51) Is

the speaker utilizing a form of “prayer” the key determinant or, as

in the district court decision in Lee, is reference to “God” (or

“Lord”, or “Father”) per se sufficient to render otherwise permis-

sible speech impermissible?** For example, it has been suggested

that poems or other ceremonial “non-religious” speech might also

fulfill the secular “solemnizing function,” e.g., “expression of

confidence in the future” or “expression of what is worthy of

appreciation in society,” in a graduation ceremony. Yet, pursuant

to this injunction (and apparently the district court decision in

Lee) invocations delivered by teachers, students or clergy reciting

appropriate

“Our cases interpreting and applying the purpose test have made

such a maze of the Establishment Clause that even the most conscien-

tious governmental officials can only guess what motives will be he!d

unconstitutional.” (Edwards, supra, 482 U.S. at 636 (Scalia, J., in

dissent) )

*’ See Sands IJ (Panelli, J., in dissent) (App. A, p. A-94-96)

* See Weisman v. Lee 728 F.Supp. at 74-75 (D.R.I. 1990)

American poems such as Ralph Waldo Emerson’s “Duty,”

which expresses hope in youth, or “Self-Reliance” celebrating

personal knowledge, would be barred from a_ graduation

ceremony.

Moreover, by way of a benedictory leave taking “religious”

language like that found in time honored speeches such as

President-elect Abraham Lincoln’s February 11, 1861 “Farewell

Address at Springfield” appears prohibited:

“M:, friends—No one, not in my situation, can appreciate

my feeling of sadness at this parting. To this place, and the

kindness of these people, I owe every thing. Here I have lived

a quarter of a century, and have passed from a young to an

old man. Here my children have been born, and one is

buried. | now leave, not knowing when, or whether ever, |

may return, with a task before me greater than that which

rested upon Washington. Without the assistance of that

Divine Being, who ever attended him, I cannot succeed.

With that assistance I cannot fail. Trusting in Him, who can

“So nigh is grandeur to our dust,

So near is God to man,

When duty whispers low, thou must

The youth replies, I can.”

(“It Can Be Done, Poems of Inspiration”, George Sully and Co.,

(Morns and Adams, Editors) p. 47)

“Henceforth, please God, forever I forego

The yoke of men’s opinions. | will be

Light-hearted as a bird, and live with God.

I find him in the bottom of my heart,

| hear continuaily his voice therein.

The little needle always knows the North,

The little bird remembereth his note,

And this wise seer within me never errs.

I never taught it what it teaches me;

I only follow, when I act nght.”

(“Selected Writings of Ralph Waldo Emerson,” Modern Library, (At-

kinson, B. Editor) p. 815)

go with me, and remain with you and be every where for

good, let us confidently hope that all will yet be well. To His

care commending you, as I hope in your prayers you will

commend me, I bid you an affectionate farewell.”

Other such examples from American literature, drama, poetry,

and well-known speeches are innumerable.

It would truly be a loss for traditional invocations and benedic-

tions, or similar “ceremonial deist’”” speech, which so expresses

what is worthy of appreciation in society to be per se barred from

graduation ceremonies. MUSD respectfully asserts the First

Amendment does not compel sanitizing the deistic invoking of

God from traditional public ceremonies and rituals including

commencement of legislative sessions, court sessions, public

meetings, public speeches, inaugurals, and traditional graduation

ceremonies. Such benign traditional acknowledgments of religion

have not served to establish a religion, or a religious faith, nor do

they tend to do so. MUSD thus asserts that pursuant to the

Establishment Clause, and any test set forth by this Court to

implement Establishment Clause principles, including a sensitive,

complete Lemon analysis, reasonable adherents or non-adherents

would not perceive historical and ubiquitous invocations and

benedictions within the ceremonial context of a graduation cere-

mony to be an establishment of religion, or an “endorsement” or

“advancement” of religion. Further, basic principles of mutual

tolerance and civility also urge that even individuals present who

might not like such invocations and benedictions should neverthe-

less listen out of courtesy and respect to the students who

included such a traditional element within their celebration.

Society certainly expects no less of individuals who, for example,

feel personally uncomfortable with the music selected by the

Students, or even who might vehemently object to unpopular

themes expressed in the speech of a student valedictorian.

As the nation becomes increasingly diverse, it is all the more

important that society focuses upon principles of mutual tolerance

and civility. Such tolerance must mutually extend to traditional,

Oles

Abraham Lincoln, Mystic Chords of Memory, a Selection of

Lincoln’s Wnitings;” Schapiro, Editor.

as well as non-traditional, and conventional, as well as unconven-

tional, cultural practices. With respect to the traditional practice

before this Court, MUSD respectfully asserts that Establishment

Clause principles and mutual tolerance support its allowed contin-

uation against claims of constitutional violation. Otherwise, the

“common sense of the matter” will have been lost, and the state

and religion far closer to becoming “aliens to each other, hostile,

suspicious, and even unfriendly.”

CONCLUSION

For the foregoing reasons, MUSD respectfully requests that

this petition for writ of certioran to the Supreme Court of

California either be granted and the case set for review, or held

for further consideration based upon this Court’s upcoming deci-

sion in Lee.

Respectfully submitted,

CHRISTIAN MARK KEINER*

J. STANTON BAIR

KEITH J. BRAY

BIDDLE & HAMILTON

1121 L Street, Suite 510

Sacramento, CA 95814

(916) 442-740]

Attorneys for Petitioners

September 16, 199]

* Counsel of Record

” Zorach, supra, 343 US. at 312

Appendix A

In the Supreme Court of the State of California

James Sands et al.,

Plaintiffs and Respondents,

Vv.

Morongo Unified School District et al.,

Defendants and Appellants.

$012721

(Court of Appeal No. E005349)

(Super. Ct. No. BCV 2279)

[Filed May 6, 1991 ]

In this case we hold that religious invocations and beriedictions

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 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 Constitu-

tion. The establishment clause reflects and implements the funda-

mental wisdom that freedom of religion flourishes only when

government observes strict adherence to the pnnciple of separa-

tion of religion and state authority. Government-sponsored relig-

ious invocations and benedictions at public school graduation

ceremonies contravene the fundamental principle of governmen-

tal neutrality and abstention in matters affecting religious beliefs

and practices.

A-2

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 Prot-

estant 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 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 pnest.

With the exception of a benediction by a teacher at Yucca

Valley High School in 1985, all the invocations and benedictions

A-3

at issue had explicitly religious content. For example, the bene-

diction 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 gradu-

ates try to meet the many challenges of their future years. Grant

them the strength to meet these challenges with courage, confi-

dence and faith. [{]] We ask Your blessings so that their lives will

brim with happiness and good health. And that each one exper-

iences a life rich in fnendship 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, | thank

you for the privilege it is to see these graduates going forth

receiving their diplomas this evening. To celebrate this time, |

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 Proce-

dure 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

A-4

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 Cal.App.3d 1012 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 judg-

ment. The tral 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 cere-

monies 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.

Il. DISCUSSION

A. The Establishment Clause of the United States Constitution

1. Genera! Principles

The federal Constitution mandates that government “make no

law respecting an establishment of religion, or prohibiting the free

exercise thereof....” (U.S. Const., First 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 plural-

ism 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) ___. US. —__._ [109 S.Ct. 3086,

3110] (hereafter County of Allegheny).) Indeed, the establish-

ment and free exercise clauses are complementary because

scrupulous government neutrality in religious matters enhances

A-S

religious freedom. As the high court has explained, “[t]he Con-

stitution 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.” (/bid.)

In Everson v. Board of Education (1947) 330 US. 1, 15-16,

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 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.”

Sixteen years later, in Abington School Dist. v. Schempp

(1963) 374 U.S. 203, 222, 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 Comm. (1970) 397 U.S. 664, 674, 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 (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.

' The high court recently reiterated this statement as controlling law.

(County of Allegheny, supra, 109 S. Ct. at p. 3100.)

A-6

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 ....”? (Edwards v. Aquillard (1987) 482 U.S. 578,

583, fn. 4.) 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)

US. [110 S.Ct. 2356]; Jimmy Swaggart Ministries v. Board

of Equalization (1990) ___ U.S. ____ [110 S.Ct. 688]; County

of Allegheny, supra, ___. U.S. ____ [109 S.Ct. 3086] ; Texas

Monthly v. Bullock (1989) 489 U.S. 1; Bowen v. Kendrick (1988)

487 U.S. 589.)

In County of Allegheny, supra, 109 S.Ct. 3086, Justice Ken-

nedy, in a separate opinion, departed from the court’s usual

application of the Lemon test, 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.’” (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.” (Jd. at p.

3109.)

Thus, the Lemon test (supra, 403 U.S. 602) has remained

controlling law for twenty years.’ We are required to decide

* As discussed later in this opinion, the high court has explained that

Marsh v. Chambers (1983) 463 U.S. 783 has no application to cases

involving religion in the public schools.

‘In his dissent, Justice Panelli states that in the high court’s most

recent establishment clause case, Board of Education v. Mergens, supra

___ U.S. ____ (hereafter Mergens), “the lead opinion’s treatment of

the Lemon test did not receive five votes.” (Post, at p. —, fn. 6 [typed

dis. opn. at p. 15, fn. 6].) If this statement is meant to suggest that

Lemon no longer commands a mayjonity in the high court, it is mislead-

ing. In Mergens, four justices joined the lead opinion applying Lemon.

A-7

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. Aquillard, supra, 482 U.S. at p. 583.) 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 “entangle-

ment” tests of Lemon, supra, 403 U.S. 602, thus rendering the

practice unconstitutiona!.

2. The “Primary Effect” Test

Under the “primary effect” test of Lemon, supra, 403 U.S. 602,

the inquiry is whether, irrespective of the government’s actual

objective, the practice in question conveys a message of endorse-

ment or disapproval. (Wallace v. Jaffree (1985) 472 U.S. 38, 56,

fn. 42; accord, County of Allegheny, supra, 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, 109 S.Ct. at p. 3101, italics in orginal.)

(Mergens, supra, 110 S.Ct. at pp. 2370-2373 (opn. of O'Connor, J.).)

Two justices applied Lemon in a concurring opinion. (110 S.Ct. at pp.

2379 (opn. of Marshall, J.).) And Justice Stevens did not reach the

constitutional question, but indicated in a footnote his continued alle-

giance to Lemon. (110 S.Ct. at pp. 2390-2391, fn. 21 (opn. of Stevens,

J.).) Only Justices Kennedy and Scalia, adhering to the views the high

court had rejected in County of Allegheny, supra, 109 S.Ct. 3086,

declined to apply Lemon. (Mergens, supra, 110 S.Ct. at p. 2377 (opn. of

Kennedy, J.).)

Notably, Chief Justice Rehnquist and Justice White, who had joined

Justice Kennedy in calling for a reformulation of the law in County of

Allegheny, joined Justice O’Connor’s opinion in Mergens applying

Lemon. Far from showing that the Lemon test cannot command five

votes in the high court, the Mergens decision, in which seven justices

expressed their adherence to Lemon, convincingly demonstrates

Lemon's continued vitality.

A-8

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. ... [9] 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 (Sth Cir. 1981)

653 F.2d 897, 901, affd. (1982) 455 U.S. 913.) The United States

Supreme Court has recognized the religious nature of prayer.

(Engel v. Vitale (1962) 370 U.S. 421, 424-425.)

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

*In his concurring opinion, the Chief Justice denies that public

prayers engage the listeners’ hearts and minds in a meaningful or

potentially divisive way. He suggests that public prayers should be

upheld as constitutional because they may be perceived from the

perspective of a detached critic of a cultural phenomenon or viewed as a

“throwback to another day,’ ”’ and because God-references are “ ‘weak

symbols’ ”’ and “ ‘almost an empty sign.’ ” (Post, at p. ___ [typed conc.

opn. at pp. 20-21].) We decline to construe public prayer as essentially

meaningless or trivial in order to find it inoffensive to the United States

Constitution.

We emphasize that this case concerns religious invocations and

benedictions—that is, solemn public prayers. Contrary to the implication

of Justice Panelli’s dissent, neither the tnal court’s injunction nor our

holding will forbid the singing of “God Bless America” at public events.

As commonly performed, such traditional patriotic songs no longer

convey significant religious meaning. It cannot be convincingly argued

that prayers convey no significant religious meaning.

“we

A-9

of studies. Considered an integral part of the educational process,

the graduation ceremony is 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 govern-

ment to celebrate a significant event, words spoken as part of a

public high school graduation ceremony inevitably create a strong

appearance of government endorsement. 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 con

tent.

As the United States Supreme Court has said: “The Establish-

ment Clause, at the very least, prohibits government from appear-

ing 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, 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;

*The record in this case does not disclose whether or not those

attending the public high school graduation ceremonies understood the

inclusion of prayers in the official program as conveying a message of

governmental approval of religion. But such evidence is not necessary.

The United States Supreme Court has treated the issue of whether a

practice has an impermissible effect as a question of law. For example,

in County of Allegheny, supra, 109 S.Ct. 3086, holding that the

government’s display of a creche was an impermissible endorsement of

religion, the high court did not rely on evidence of how any member of

the public perceived the display. Instead, the court determined as a

matter of law that, by the manner in which it had displayed the creche,

the government had lent its support to the communication of a religious

message. (/d. at pp. 3103-3105; see also Larkin v. Grendel's Den, Inc.

(1982) 459 U.S. 116, 125-126; Abington School Dist. v. Schempp,

supra, 374 U.S. at pp. 222-224.) Here, a reasonable observer would view

the inclusion of graduation prayers in an official school ceremony as

signifying approval of the practice of prayer and the prayer’s religious

content. The message of sponsorship is unavoidable.

A-10

appears to prefer religior’ 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 prac-

tice 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, 72-73, affd. (1st Cir. 1990) 908 F.2d 1090, cert.

granted sub nom. Lee v. Weisman (Mar. 18, 1991) __. US.

—__ [59 U.S.L.Week 3635] (Dock. No. 90-1014).) 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, cert.

den. (1989) 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 gradua-

tion prayers occur only once a year, are bref 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 gov-

ernmental practices of a religious nature (e.g., County of Alle-

A-!1

gheny, supra, 109 S.Ct. 3086 [annual creche display]; Fox v. City

of Los Angeles (1978) 22 Cal.3d 792 [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 [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.’ (Jbid.; see Abington School Dist. v.

Schempp, supra, 374 U.S. 203, 225 [it is no defense to urge that

the religious practices here may be relatively minor encroach-

ments on the First Amendment’’].) The proper focus, therefore,

is not on the duration of the practice, but on its religious

character. (/bid.)

Nor does the predominantly secular nature of the graduation

ceremony make the government’s endorsement of prayer less

offensive to the First 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 comple-

tion 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 pubiic

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.)

In County of Allegheny, supra, 109 S.Ct. 3086, and Lynch v.

Donnelly (1984) 465 U.S. 668, 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.° In

* Justice Panelli’s dissent relies extensively on dictum in Lynch v.

Donnelly, supra, 465 U.S. 668, holding that a city may display a nativity

A-12

this case, the District proposes that we undertake a similar

evaluation, arguing that graduation prayers are permissible be-

cause 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-spon-

sored 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 constitution-

ally acceptable. As discussed earlier, a government practice vio-

lates 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 favorit-

ism of religion in general (e.g., County of Allegheny, supra, 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).

The inclusion of prayers in the official school ceremony cannot

be justified as “accommodation” of religion. The United States

scene during the holiday season. County of Allegheny, however, contains

the more recent and thorough exploration of the issue. In that case, the

high court held that a nativity scene displayed on government property

was unconstitutional because it communicated a religious message, and

it declared that the establishment clause “at the very least, prohibits

government from appearing to take a position on questions of religious

belief...” (County of Allegheny, supra, 109 S.Ct. 3086, 3101.) To the

extent that Lynch and County of Allegheny are inconsistent, the latter

case, for reasons just explained, provides more authoritative guidance on

the federal establishment clause.

A-13

Supreme Court explained in County of Allegheny that

“[g]jovernment efforts to accommodate religion are permissible

when they remove burdens on the free exercise of religion.” (109

S.Ct. at p. 3105, fn. 51, 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 accom-

modation of religion that is not mandated by the free exercise

clause (id. at p. 3111, fn. 59), 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, italics added). There is no room,

however, for official sponsorship under the guise of

“accommodation.”

In this case, the District also seeks to justify its practice of

incorporating prayers in its graduation programs by arguing that

’ The official practice of including prayers in graduation ceremonies

cannot be rendered acceptable by analogy to Mergens, supra, 110 S.Ct.

2356. In Mergens, the United State Supreme Court upheld the Equal

Access Act (20 U.S.C. §§ 4071-4074), which requires high schools to

allow student-run religious clubs to meet on the same basis as chess

clubs and political clubs. The court observed that high school students

are “mature enough . . . to understand that a school does not endorse or

support student speech that it merely permits on a nondiscriminatory

basis” (110 S.Ct. at p. 2372), and it stressed that under the act “school

officials may not promote, lead, or participate in any [high school

religious club] meeting” (id. at p. 2373).

By contrast, in this case school officials do promote, lead, and

participate in the religious ceremonies: they are directly and finally

responsible for the selection of religious speakers at graduations, and in

at least one instance a faculty member delivered the prayer. Here,

therefore, the question is not whether high school students are mature

enough to perceive that no endorsement is involved: when government-

approved speakers lead students and faculty in prayer at an official

school ceremony, endorsement is involved.

A-14

“no state coercive authority” is present in the graduation context.

But, as we shall explain, this focus on coercion is misplaced.

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, the United States Supreme

Court invalidated a statute that required a brief nondenomina-

tional prayer to be recited at the start of each school day. The

court explained: “Neither the fact that the prayer may be denom-

inationally 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 ....” (/bid.) In subsequent deci-

sions, the high court has adhered to this holding. (See, e. g.,

Abington School Dist. v. Schempp, supra, 374 U.S. at p. 223

[“The distinction between the two clauses is apparent—a viola-

tion of the Free Exercise Clause is predicated on coercion while

the Establishment Clause violation need not be so attended.” }j;

Committee for Public Education v. Nyquist (1973) 413 U.S. 756,

786 [“proof of coercion... [is] not a necessary element of any

claim under the Establishment Clause”]; County of Allegheny,

supra, 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.”’].)

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.)

Similarly, school officials cannot avoid an establishment clause

violation by permitting graduating students to forgo their own

graduation ceremonies when the official program includes relig-

ious messages with which they disagree. Such a result, in which

nonbelievers and adherents of minority religions would be effec-

tively 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

“{dJesigned ‘to-serve as perhaps the most powerful agency for

A-15

promoting cohesion among a heterogeneous democratic people

....’ (McCollum v. Board of Education (1948) 333 U.S. 203,

216 (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. Aquillard, supra, 482 U.S. at p.

584.)

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 government is to be neutral in

matters of religion, rather than showing either favoritism or

disapproval ..., government cannot endorse the religious prac-

tices 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, \09

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

Government supervision of religious practices is fundamentaliy

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, quoting Lemon, supra, 403

U.S. at p. 620.) The establishment clause also prohibits state

inspection and evaluation of the religious sontent of speech.

(Aquilar v. Felton (1985) 473 U.S. 402, 410-411.) Such activi-

ties pose an “intolerable msk” of excessive government entangle-

ment with religion. (See Tony & Susan Alamo Foundation v

Sec'y of Labor (1985) 471 U.S. 290, 305.)

The practice of including prayers at public high school gradua-

tion ceremonies impermissibly entangles government in religious

matters in two ways: It involves governmental selection or ap-

A-16

proval of religious speakers and governmental approval of the

content of public prayer.

Graduation ceremonies are official functions, and school ad-

ministrators 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 impermis-

sible 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.

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

A-17

school setting, would “ ‘necessarily give rise to a constitutionally

intolerable degree of entanglement between church and state.’ ”

(Aquilar v. Felton, supra, 473 U.S. at pp. 410-411; compare

Mergens, supra, 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 partici-

pate in meetings and may monitor them only for custodial

purposes], with Widmar v. Vincent (1981) 454 U.S. 263, 272, fn.

1] [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.)°

* In his dissenting opinion, Justice Baxter concludes that some but not

all of the invocations at the District’s graduation ceremonies were

constitutionally impermissible, and he argues that “the court can fashion

guidelines” for determining what is constitutionally permissible prayer

for a public school graduation ceremony. Notably, however, Justice

Baxter does not specify what those guidelines might be.

To establish and administer guidelines for acceptable public prayer

would require a court to address at /east these questions: Does the

required diversity mean that each different sect of each religion be

represented, or do only “major denominations” have a night to deliver

prayers? Do clergy of what some might consider “fringe” religions

possess a right to give invocations? If not, why not? And if so, how

frequently? What references to a particular religion’s theology or doc-

trine are acceptable? Are some doctrinal references permissible but not

others? Is a prayer that proselytizes acceptable? If not, what is the line

between judicially acceptable prayer and improper proselytizing?

Justice Baxter’s approach would in effect make this court a standing

committee on approved theology. This is a task for which we are, to say

the least, not well equipped.

A-18

We conclude that the official approval of religious speakers and

government monitoring of the content of religious speech necessa-

rily 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

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.” (463 U.S. at pp. 790-

791.) In County of Allegheny, supra, 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 con-

temporary 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 .... [99] [This] reading of Marsh would gut

the core of the Establishment Clause, as this Court understands

it.” (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. Aquillard, supra, 482 U.S. 578,

the court said the historical approach taken in Marsh is “not

useful in determining the proper roles of church and state in

* Marsh, supra, 463 U.S. 783, is properly understood as deriving in

part from the judiciary’s deference to the legislative branch in the

management of that branch’s own internal affairs (see Van Zandt v

Thompson (7th Cir. 1988) 839 F.2d 1215, 1219), a deference not

implicated in this case.

A-19

public schools, since free public education was virtually nonexis-

tent at the time the Constitution was adopted.””'” (482 US. at p.

583, fn. 4.)

In Stein v. Plainwell Community Schools, supra, 822 F.2d 1406

(hereafter Stein), a federal appellate court concluded that relig-

ious 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.” (/d. 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 State Supreme Court's state-

ment in Edwards v. Aquillard, supra, 482 U.S. at page 583,

footnote 4, 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. 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.) 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

The Chief Justice suggests in his concurring opinion that by this

Statement the United States Supreme Court meant only that the Marsh

analysis has no application to cases involving classroom instruction. We

cannot accept this interpretation. We presume that the high court

chooses its words with care and precision, and that in this instance it

meant what it said.

A-20

of the prayers held unconstitutional in Stein. (/d. at p. 1407,

fn. 1.)

B. The Religion Clauses of the California Constitution

The California Constitution contains guarantees of the separa-

tion of religion and state in addition to those found in the federal

Constitution. In language virtually identical to the First Amend-

ment’s establishment clause, our state Constitution declares,

“The Legislature shall make no law respecting an establishment

of religion.”” (Cal. Const., art. I, § 4.) 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.) 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 | 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

appropniation, or pay from any public fund whatever, or grant

A-21

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 involve-

ment that promotes religion. (California Educational Facilities

Authority v. Priest (1974) 12 Cal.3d 593, 605, fn. 12.) As we

have explained, government sponsorship of prayer promotes relig-

ion. Accordingly, religious invocations and benedictions at public

school graduation ceremonies are prohibited by article XVI,

section § of the state Constitution as well.

Ill. 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 religions or to no religion.'’ 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 faction-

alism and the violence tragically associated with political division

along religious lines, our nation’s position of governmental neu-

trality on religious matters stands as an illuminating example of

the true meaning of freedom and tolerance.

‘According to the most recent edition of the World Chnstian Ency-

clopedia (Barrett ed. 1982), in 1980 the United States population

included 7.25 million persons who belonged to the Jewish faith, 500,000

Hindus, almost 2 million Muslims, nearly 2 million members of other

non-Chnistian religions, and 14.9 million people who identified them-

selves as nonreligious. (/d. at p. 711, table 1.)

A-22

Because the practice of officially endorsed prayers at public

school graduation ceremonies cannot be reconciled with the

constitutional principles of religious freedom and official neutral-

ity, 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 tral court.

KENNARD, J.

WE CONCUR:

MOSK, J.

BROUSSARD, J.

A-23

SANDS v. MORONGO UNIFIED SCHOOL DISTRICT

S012721

CONCURRING OPINION BY LUCAS, C.J.

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. _____ [59

U.S.L. Week 3635] (Dock. No. 90-1014)) (hereafter Lee), in

which the Court of Appeals for the First Circuit (Weisman v. Lee

(Ist Cir. 1990) 908 F.2d 1090) held that a public prayer deliv-

ered by a clergyman at the close of a high schoo! graduation

ceremony violated the establishment clause of the First Amend-

ment as construed in Lemon v. Kurtzman (1971) 403 U.S. 602

(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.

Reluctantly, | 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; Scott v. Industrial Acc. Com.

(1937) 9 Cal.2d 3!5, 323.) Based on my reading of the relevant

Supreme Court authonty, I conclude that the Morongo Unified

School Distnct’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, ie., the primary effect of the practice is one that advances

... religion.” (Lemon, supra, 403 U.S. at pp. 612-613.)

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 Establish-

ment of Religion or prohibiting the Free Exercise thereof.” (U.S.

Const., amend. I.) State-composed and financed prayers, Bible

readings, and other religious exercises, even though nominally

voluntary, Cannot constitutionally form a part of public instruction

A-24

in this country. (Abington School Dist. v. Schempp (1963) 374

U.S. 203; Engel v. Vitale (1962) 370 U.S. 421.) 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.) 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 (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, |

would await the guidance that will emanate from full considera-

tion of the First Amendment issues by the United States Su-

preme 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.)

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 (here-

after Lynch), quoting Lemon, supra, 403 US. at p. 614.) Both

the general language of the First Amendment and its interpreta-

tion by the courts suggest that bight 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 i//umi-

nated by history.” (Walz v. Tax Comm'n (1970) 397 U.S. 664,

671, italics added; see also Lynch, supra, 465 U.S. at p. 678.)

A-25

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 understand-

ing of [their] guarantees.” (Lynch, supra, 465 U.S. at p. 668.)

“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,

quoting New York Trust Co. v. Eisner (1921) 256 U.S. 345, 349.)

History also provides a means to assess whether particular

government practices have enhanced or inhibited basic constitu-

tional values and principles over me. 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 nght 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 prac-

tice 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

Comm'n, supra, 397 U.S. at p. 678.)

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 rela-

tionship between church and state at the time of adoption of the

Constitution and the Bili of Rights, including the practice of

public prayer, has been thoroughly explored by scholars. (See,

e.g., Wood, Religion and the Bill of Rights, in The First Freedom

A-26

(1990) (hereafter Wood); Smith, Public Prayer and the Consti-

tution (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; Marsh,

supra, 463 U.S. at pp. 786-791, Walz v. Tax Comm'n, supra, 397

U.S. at pp. 677-692.)

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 principels 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 deci-

sions about their nghts or privileges as citizens on the basis

A-27

religious profession or lack of it.' I will refer to this principle as

“church-state disengagement.”

' See, e.g., Curry, supra, at page 222 (“The [religion clauses] meant

at least this: that each citizen had the right to free exercise of his or her

religion as long as it did not ‘break out into overt acts against peace and

order.’ Further. . . religion should be maintained and supported volunta-

rily....[G]overnment attempts to organize and regulate such support

[are a] usurpation of power [and a] violation of liberty of conscience

and free exercise of religion. ..”); Adams & Emmerich, a Heritage of

Religious Liberty (1989) 137 U.Pa.L.Rev. 1559, 1621 (“The historical

record demonstrates that when a state sought to establish a church it did

so by using the ‘civil sword’ to compel beliefs and conduct supportive of

that church. The essence of an establishment, therefore, was govern-

mental coercion of conscience.”); see also County of Allegheny v.

American Civil Liberties Union (1989) __. U.S. suns | 100 SCA.

3086, 3136] (hereafter County of Allegheny) (Kennedy, J., conc. &

dis.) (“[Government] may not coerce anyone to support or participate

in any religion or its exercise; and it may not, in the guise of avoiding

hostility or callous indifference, give direct benefits to religion in such a

degree that it in fact ‘establishes a [state] religion or religious faith, or

tends to do so.’”’, citing Kynch, supra, 465 U.S. at page 678.

* According to recent historical studies, the principle of church-state

engagement has both ideological and practical roots. It is based in part

on enlightenment views of human nature as interpreted by the American

settlers. Roger Williams, the founder of Rhode Island and an influential

figure in the history of religious freedom, wrote that all individuals,

regardless of their religious or nonreligious persuasions, possessed a

natural capacity for conscience and a corresponding natural right to

equal treatment in civil society. In urging that persons “not be deprived

of their and civil nghts and liberties” on account of the presence or

absence of religious convictions, Williams emphasized the ability of all

persons to be “peaceable and quiet subjects, loving and helpful neigh-

bors, fair and just dealers” and “true and loyal to the civil government.”

(Williams, Complete Writings (1963) at p. 365, quoted in Wood, supra,

at p. 33; see also Wood, supra, at pp. 30-34.)

But the principle also has a pragmatic foundation. The framers were

not systematic theologians who sought to foster a millennium of judicial

debates on religious ideas and symbols. Rather, they were statesmen

who were concerned about: (1) the potential temporal power of the

visible church as a social and political institution, and (2) the potential

a ey

A-28

The church-state disengagement principle is an important re-

flection 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 com-

mentator has written: “[R Jeligious 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,

ecclesiastical power of government to control its citizens through

mandatory religious adherence. (Lynch, supra, 465 US. at p. 678;

Jones, “In God We Trust” and the Establishment Clause (1989) 31 J.

Church & State 381, 412 [“ ‘[E]stablishment’ means government

support for institutions (churches) and does not concern religion in

general.”]; Adams & Emmerich, supra, 137 U.Pa.L.Rev. at p. 1615

[“{ T]he Founders conceived of separation in institutional rather than

cultural terms. The principal evil they sought to avoid was an alliance of

civil and ecclesiastical power that would threaten religious liberty; that

religion and society should be separated is a notion that would have met

with uniform disapproval. The centrist position that predominated

among the Founders recognized that religion was great teacher of

morality and an essential pillar of civil society.” }.)

The framers believed that concentrations of power in the hands of any

individual or institution tended to corruption and tyranny. To prevent

such a concentration within government, they created a federa! system

with a national government of specified powers and systems of checks

and balances and separations of powers. To prevent such a concentration

in the church-state relationship, they prohibited national government

from establishing a church or inhibiting free individual choice in church

membership lor religious practice. In this way, the church as an

institution was to be relegated to the private sphere of life. where free

competition and individual selections from among a variety of sects and

denominations could be expected to produce diversity and a resulting

diffusion of civil authority. (Ely, Democracy and Distrust; A Theory of

Judicial Review (1980) at p. 94 [“Obviously part of the point of [the

religion Clauses] was to make sure the church and the government gave

each other breathing space; the provision thus performs a structural or

separation of powers function... . In addition], part of the explanation

for the free exercise clause has to be that for the framers religion was an

important substantive value they wanted to put significantly beyond the

reach of at least the federal legislature.” ].)

A-29

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,

Religion and the Constitution, in Wood, supra, at p. 10.)

The Supreme Court’s decisions dealing with the religion

clauses reflect the church-state disengagement principle, includ-

ing 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 de-

nominational preferences is inextricably connected with the con-

tinuing vitality of the Free Exercise Clause.” (Larson v. Valente

(1982) 456 U.S. 228, 244-245.)

In Lemon, supra, 430 U.S. 602, the Court invalidated a salary

supplement paid to nonpublic school teachers and a reimburse-

ment 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

inhivited religion, and to avoid excessive government entangle-

ment with religion. (1d. at pp. 612-613.) 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, 109 S.Ct. 3086;

Lynch, supra, 430 U.S. 602.)

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, Enge! 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 show-

ing “direct governmental compulsion” on a plaintiff in an estab-

lishment clause case, it observed that indirect pressure was

nonetheless present: “When the power, prestige, and financial

A-30

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.)

Distinguishing between the prescription of prayer in the class-

room 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 pnvileges 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. Wniting 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 Educ. of Westside

Com. Schools v. Mergens (1990) _. US. ; [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 consis-

tent 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.)’ From its review of this history, the

* On the same day it approved the Bill of Rights, the First Congress

passed the following resolution calling on the President to proclaim a

national day of thanksgiving and prayer: “That a joint committee of both

Houses be directed to wait upon the President of the United States to

request that he would recommend to the people of the United States a

day of public thanksgiving and prayer, to be observed by acknowledging

A-31

court concluded: “[T]he delegates [to Congress] did not con-

sider 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 pp. 787-788, 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 blessings on our

nation and its leadership, and encouraged prayer. (Cord, supra, at

p. 35; Rice, supra, at pp. 177-193)‘

with grateful hearts, the many signal favors of Almighty God. especially

by affording them an opportunity peaceably to establish a Constitution

of government for their safety and happiness.”” (Annals of Cong 949,

cited in Rice, supra, at p. 48, italics added; see also Marsh, supra, 463

U.S. at p. 788, fn. 9.)

The First Amendment issue raised by the prospect of government

encouragement of public prayer did not go unnoticed in Congress

Representative Thomas Tucker of South Carolina objected to the

resolution, arguing in part: “this... is a business with which Congress

have nothing to do; it is a religious mater, and, as such, is proscnbed to

us.” (Annals of Cong. 914-915, cited in Curry, supra, at p. 217)

Representative Tucker also voted againsi the religion clauses as they

were finally adopted by Congress. Congress obviously did not share his

views as to the scope and effect of those clauses.

* President Bush continued this tradition in his addresses to the nation

about the recent war in the Persian Gulf. As the war began, he asked

each American to “stop what [he or she was] doing and say a prayer for

all the coalition forces, and especially for our men and women in

uniform, who, this very moment, are msking their lives for their country

and for all of us.” He asked that “God bless and protect each and every

one of them and... the United States of Amenca.” (Pres. Address,

Feb. 25, 1991, as reported by the Financia! Times, italics added ) When

the war ended, President Bush reminded the people of the United States

that “From the moment Operation Desert Storm commenced on Janu-

ary 16, until the me the guns fell silent at midmight one week ago. this

A-32

Even as the nation grew and diversified in the 19th century, the

view that the religion clauses did not forbid government sponsor-

ship of public prayer continued to prevail. Thomas Cooley, one of

the great constitutional scholars of the era, commented on consti-

tutionally permissible practices involving of “solemn recognition

of a superintending Providence in public transactions and exer-

cises 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 entangle-

ment, however, Cooley cautioned: “Undoubtedly the spirit of the

Constitution will require ... that care be taken to avoid discrimi-

nation 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 Limi-

tations (1868) pp. 470-471, quoted in Cord, supra, at pp. 13-14.)

All three branches of our national government and state gov-

ernments 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 p. 788-789, fns.

10-11.) 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, 109 S.Ct. at pp. 1341-1342 (Kennedy, J., conc. & dis.),

and Lynch, supra, 465 U.S. at pp. 675-676, fns. 2-5 [further

examples of presidential proclamations and other government

action acknowledging a Supreme Being].)

nation has watched over its sons and daughters with pride—watched

over them with prayer.”’ (Pres. Address, Mar. 7, 1991, as reported by the

Associated Press, italics added. )

A-33

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 the 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 (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 Comm'n, 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 diver-

sity, inclusiveness, and sophistication as a nation, the invocation

of a Supreme Being in public prayer on civic ceremonial occa-

sions remains part of our heritage and culture. Whether in high

school or college commencement exercises, Fourth of July cele-

brations, Memorial Day remembrances, or on other occasions, a

Supreme Being is invoked in a spint of thanks and praise and in

supplications for help and guidance.’ In Cooley’s phrase, the

* One explanation for the continuation of this tradition may be the

stability of the general beliefs and attitudes of Americans about the

general subjects of God and prayer. A 1988 Gallup Poll revealed that 94

percent of Americans believe in God or a universal spirit (exactly the

same proportion who so reported in 1937). Ninety percent also reported

that they prayed to God, with thirty- «x percent doing so twice a day or

more. However, only 40 percent report regular attendance at a church or

synagogue. (Gallup Poll results (Dec. 24, 1988) reported in the

Economist. )

A-34

“general religious sentiment of mankind” continues to be part of

Amenican 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, in general terms, the civic importance of religion and

religious ideas, but the clauses block overt discrimination among

sects or religious groups, direct financial support of churches,

government pressure designed to require or prohibit religious acts,

and other conduct which, “in reality, ... establishes a religion or

religious faith or tends to ao so.” (Lynch, supra, 465 U.S. at p.

678.)

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 distnict’s policy and practice. (Lipson v. Superior Court

(1982) 31 Cal.3d 362, 374.) 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’ aca-

demic 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

A-35

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 benedic-

tions) 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 one- and one-half hour exercises). Mea-

sured 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. Accord-

ing 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.

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 invoca-

tion 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.”

A-36

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, happi-

ness, 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

evaiuation 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 constitu-

tionally displayed in one context (Lynch, supra, 465 U.S. 668

[holiday display with Santa Claus house and Christmas tree];

County of Allegheny, supra, 109 S.Ct. 3086 [menorah next to

Chnstmas tree with sign referring to liberty]) but not in another

(County of Allegheny, supra, 109 S.Ct. 3086 [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 distin-

guish, in First Amendment terms, between “real threat’ and

“mere shadow” (Abington School Dist. v. Schempp, supra, 374

U.S. at p. 308 (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 bref

exercise with personal beliefs and emotions, particularly since

references to God are “weak symbols” which readily conform to

individuai interpretation. As one commentator observes: “[ T]he

religious use of the term ‘God’ comes as close as possible to a

genenic 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 Amencan Indians and even most_

A-37

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 symboi permits religious diver-

sity 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 prac-

tice, 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 (N.H. 196%) 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

retain any authonty to impose any penalty on a person for electing

not lo participate in the exercise.

Second, invocations and benedictions serve an important secu-

lar function at high school graduations. They provide a sense of

tradition, continuity, and transcendence that evokes positive emo-

tions 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

court sessions with “God save the United States and this Honora-

ble Court” serve “the legitimate secular purpose of solemmizing

public occasions, expressing confidence in the future, and encour-

aging the recognition what is worthy of appreciation in society ”

(Lynch, supra, 465 US. at pp. 692-693 (O'Connor, J.. conc. ); see

also County of Allegheny, supra, 109 S.Ct. at pp. 3) 20-3121

(O'Connor, J., conc.).)

lilac aaa rein

A-38

Although it does not appear that Justice O’Connor’s “solemni-

zation” approach to reconciling benign recognition of religion had

been adopted or applied by a majority of the court (County of

Allegheny, supra, 109 S.Ct. at p. 3103, fr. 46 (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 gradua-

tion 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, 109 S.Ct. at p. 1386 (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, 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 authonty to promote one sect or

religious denomination over another. Clergy and school personne!

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 universe.” He denied that he

was necessarily referring to Chnist. Plaintiffs supplied no evidence

to the contrary. Thus, the evidence shows the terms used in the

A-39

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, 483

U.S. 306, 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 institu-

tions 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 Legisla-

ture which were sustained by the Supreme Court in Marsh, supra,

463 U.S. 306, as a benign recognition of religion as part of

American culture. In Marsh, a six-member majorty of the

Supreme Court sustained the 200-year old practice of the Ne-

braska Legislature in opening its session with prayers offered by a

government-paid chaplain. Without applying the Lemon (supra,

403 U.S. 802) test or positing any secular purpose for legislative

prayer, the court reviewed the 200-year history of the congres-

sional 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.”

(Id. at p. 791.) The court held that the founding fathers did not

regard the legislative practice of prayer as prostyletizing activity

or as symbolically placing the government’s ‘official seal of

approval on one religious view.” (Id. at p. 792.) Rather, they

Saw it as “simply a tolerable acknowledgement of beliefs widely

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held among the people of this country.” (Ibid.) As to the

particular piaintiff in the case, a Nebraska legislator and taxpayer,

the Court observed that, as an adult, he was not readily subject to

“ “religious indoctrination.” ( Ibid.)

After sustaining the general practice of legislative prayer, the

Court went on to sustain its particular incidents in the Nebraska

Legislature. It 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 Judco-

Christian tradition of the prayers offered. It noted the perform-

ance of guest chaplains and pointed to the lack of evidence of any

“ympermissible motive” in the chaplain’s selection and tenure.

(Marsh, supra, 463 US. at p. 793.) 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 p. 795.)

Like the prayers in Marsh, the invocation and benediction here

are brief and

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.