Lee v. Weisman II
505 US 577 (1992)
Bill Long
Two concurring opinions strike out in different directions from Justice Kenndy's majority opinion. First, Justice Souter penned a concurrence longer than the majority opinon which tried to establish two points: (1) that the Establishment Clause forbids not simply coercive prayers but also any kind of state-sponsored exercise that favors one religious expression over another or even religion over irreligion; and (2) that the founding fathers' debates on the adoption of the religion clauses shows that the philosophy of "nonpreferentialism" was present in 1789 as well.
To establish his first point, Justice Souter cited seven cases from the Court's jurisprudence between 1947 and 1989 to establish the point that "neither a State nor the Federal Government..can constitutionally pass laws or impose requirements which aid all religions as against non believers" (quoting the 1961 Torasco case). And, the second point was premised on the notion that the various drafts of the First Amendment religion clauses showed that the congressional debates gradually moved from the idea of potentially supporting religion over irreligion (with Congress just forbidden from favoring one religion over another) to the prohibition of Congressional support for "religion" in general. Thus, the concurrence goes further than the majority opinion by arguing that a showing of psychological coercion is not necessary to prove an Establishment Clause violation. Many non-coercive state laws have been struck down because they conveyed a message of religious endorsement. The concurrence does recognize, however, that "we may be unable to know for certain what the Framers meant by the [Establishment] Clause...
Justice Blackmun also concurred in a briefer opinion the central point of which was to focus on the idea of a mixing of church and state or fusion between the two that would have occured had the practice been allowed. Again, he tried to go beyond Justice Kennedy's "coercion" formulation by stressing that the Establishment Clause entails more than freedom from coercion. "The Establishment Clause protects religious liberty on a grand scale; it is a social compact that guarantees for generations a democracy and a strong religious comunity--..." The nature of the compact is that both sides agree not to "mix" with the other, because the mixing of government and religion can be a threat to free government, even if no one is compelled to participate in it.
Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented. In Scalia's colorful prose, the decision "lays waste a tradition" that is as old as public shcool graduation ceremonies themselves and devises as a "bulldozer" for the task a "boundless, and boundlessly manipulable, test of psychological coercion." The central point of the dissenters was that the history and tradition of the Nation are replete with public ceremonies featuring prayers of thanksgiving and petition, and that this history ought to be dispositive in Lee. Scalia cites examples from Washington to the then-current President (the first President Bush) to show that prayer goes hand in hand with official acts of public officials. School graduation prayers are just a subset of this larger category.
In addition, Scalia subjected the argument of psychological coercion to more intense scrutiny. He calls the majority's efforts to engage in psychology the practice of "amateurs," and opines that the notion of coercion which would reach a constitutional magnitude was reflected in the 1943 Barnette case (compulsory flag salute) where expulsion of students and penalties on parents was envisioned for not complying with the flag salute. Here all one had to do was to stand respectfully while the rabbi prayed; anyone concluding that this involves pyschological "coercion" would be sorely mistaken. As a matter of fact, the flag was saluted directly before the prayer was offered. If the "forced" standing amounted to "coercioin," then the flag salute also should be declared unconstitutional for the same reason. [It is interesting that the constitutionality of the flag salute has now been considered by lower courts; however, the issue there was not the "coercive" nature of the Pledge recitation but the inclusion of "under God" in the language.]
As Justice Brennan feared in his lengthly dissent in the 1983 Chambers case (constitutionality of paid legislative chaplains who open sessions of the legislature with prayer), the Chambers case might not be narrowly confined to its facts; indeed, Scalia cites Chambers in support of his reasoning. He concludes by using the word which had become the "buzz word" of conservatives on this question for at least fifteen years; that the Establishment Clause does not forbid the government's effort to "accommodate" religion.
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