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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 1218

## Text

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SEP 26 199}

| OFRE OF TR CLERK
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

i
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?

li

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

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.....................

I

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

I]

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

13

iV

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

Vv

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

vi

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

2%

28

28

ae

+

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.

2

(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.

3

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)

4

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)

5

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)

6

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

7

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.

8

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)

9

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 ).)

10

“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

11

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-

12

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

13
II

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.

14

(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

15

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

16

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)

17

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

18

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)

19

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)

20

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

21

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 )

22

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.

23

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)

25

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.

26

“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))

27

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)

28
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)

29

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.

30

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.

a

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 Jus

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2741%3A1. Public record. Not legal advice.