Establishment Clause--An Introduction

Older Cases

Important Cases

Everson v. Board (47)

McCollum v. Board (48)

Zorach v. Clauson (52)

Engel v. Vitale (62)

Abington Sch. Dist (63)

Brennan's Opinion (63)

Board v. Allen (68)

Epperson v. AR (68)

Walz v. Commission (70)

Lemon v. Kurtzman (71)

Tilton v. Richardson (71)

Hunt v. McNair (73)

Comm. v. Nyquist (73)

Levitt v Committee (73)

Sloan v. Lemon (73)

Meek v. Pittenger (75)

Roemer v. Maryland (76)

NY v. Cathedral (77)

Wolman v. Walter (77)

Committee v. Regan (80)

Regan II

Stone v. Graham (80)

Widmar v. Vincent (81)

Chambers v. NE (83)

Mueller v. Allen (83)

Lynch v. Donnelly (84)

Wallace v. Jaffree (85)

Aguilar v. Felton (85)

Grand Rap. v. Ball (85)

Witters v. Wash. (86)

Edwards v. Aguillard (87)

Bowen v. Kendrick (88)

Alllegheny I (89)

Allegheny II (89)

Westside v Mergens (90)

Lee v. Weisman (92)

Lee v. Weisman II (92)

Lamb's Chapel (93)

Zobrest v. Catalina (93)

Bd. of Kiryas Joel (94)

Rosenberger v. UVA (95)

Agostini v. Felton (97)

Santa Fe v. Doe (00)

Mitchell v. Helms (00)

Zelman (02)

McCreary County (05)

Van Orden (05)

Lee v. Weisman

505 US 1992 (Decided June 24, 1992)

Bill Long

In this 6-3 decision, the Court decided that a nonsectarian prayer at a Middle School graduation ceremony offered by a local rabbi who was invited by school officials and given guidelines on prayer drawn up by the National Conference on Christians and Jews, violated the Establishment Clause of the First Amendment because of its tendency to coerce students into religious conformity at an event which is "in a fair and real sense" obligatory. This coercion test was cited by Judge Goodwin in the 2002 Pledge case as one of the central principles of Establishment Clause jurisprudence. The Lee case garnered four opinions. This mini-essay will review the majority opinion; the next will consider concurring and dissenting opinions.

Speaking for the majority, Justice Kennedy first presented the invocation and benediction offered by the rabbi at this Providence, RI service. Invocation: "God of the Free, Hope of the Brave: For the legacy of America where diversitiy is celebrated and the rights of minorities are protected, we thank you. May these young men and women grow up to enrich it. For the liberty of America, we thank You. May these new graduates grow up to guard it. For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust. For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that thy might help to share it. May our apsirations for our country and for these young people, who are our hope for the future, be richly fulfilled. AMEN."

And then, at the end of the ceremony, this benediction: "O God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement. Happy families give thanks for seeing their children achieve an important milestone. Send your blessings upon the teachers and administrators who helped prepare them. The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly. We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion. AMEN."

Justice Kennedy first recognized Lemon and reitereated that the "effects test" of that case is violated whenever government action "creates an identification of the state with a religion, or with religion in general" or when "The effect of the governmental action is to endorse one religion over another, or to endorse religion in general." The question before the Court was whether the invocation/benediction created such an identification or, like the 1983 Chambers case (upholding payment to a legislative chaplain praying at the commencement of the Nebraska legislative session), was not sufficiently distinct from a prayer in the legislature to cause an Establishment Clause problem. Justice Kennedy's central point was that the graduation prayer were "in a fair and real sense obligatory," and that this school district's involvement with religious activity in this case is "pervasive, to the point of creating a state sponsored and state directed religious exercise in a public school."

He repeatedly mentioned the controlling nature of the school district action in obtaining the rabbi's services as well as the coercive nature of the practice at graduation. The school principal "directed and controlled" the content of the prayer. Students are then subjected to " a formal religious exercise" where "for all practical purposes," they "are obliged to attend." Drawing on precedents going back to the 1960s (Schempp and Engel), Kennedy argued that prayer exercises in public schools carry a particular risk of psychological coercion. He then appealed to "research in psychology," to support the common assumption that "adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention." Thus, in a school setting which "in effect required participation in a religious exercise," the plaintiffs suffered a real injury and a violation of their First Amendment rights.

Justice Kennedy quickly dispatched of the argument that the prayer was nothing more than a "choice" offered to students to show them how to learn to live in a pluralistic society, which insists upon tolerance and disagreement by emphasizing the fundamentally different scope of the religion and speech clauses of the First Amendment. Finally, he distinguished the practice of legislative prayer approved in Chambers by saying that the constraint present in Lee was absent in the legislative climate where adults, rather than children, are "free to enter and leave with little comment and for any number of reasons." This contrasted dramatically from the situation at hand, where the school made the prayer as "state sanctioned religious exercise in which the student was left with no alternative but to submit."

The next essay considers the concurring and dissenting opinions.