Weisman Video (Duke Law)
Decided June 24, 1992
JUSTICE KENNEDY delivered the opinion of the Court.
School principals in the public school system of the city of
Providence, Rhode Island, are permitted to invite members of the
to offer invocation and benediction prayers as part of the formal
graduation ceremonies for middle schools and for high schools. The
question before us is whether including clerical members who offer
prayers as part of the official school graduation ceremony is
consistent with the Religion Clauses of the First Amendment,
the Fourteenth Amendment makes applicable with full force to the
and their school districts.
Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony in June, 1989. She was about 14 years old. For many years, it has been the policy of the Providence School Committee and the Superintendent of Schools to permit principals to invite members of the clergy to give invocations and benedictions at middle school and high school graduations. Many, but not all, of the principals elected to include prayers as part of the graduation ceremonies. Acting for himself and his daughter, Deborah's father, Daniel Weisman, objected to any prayers at Deborah's middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah's class. Rabbi Leslie Gutterman, of the Temple Beth El in Providence, accepted.
It has been the custom of Providence school officials to
provide invited clergy with a pamphlet entitled "Guidelines for
Occasions," prepared by the National Conference of Christians and
The Guidelines recommend that public prayers at nonsectarian civic
ceremonies be composed with "inclusiveness and sensitivity,"
they acknowledge that "[p]rayer of any kind may be inappropriate
some civic occasions." The principal gave Rabbi Gutterman
the pamphlet before the graduation, and advised him the invocation
benediction should be nonsectarian.
Rabbi Gutterman's prayers were as follows:
The school board (and the United States, which supports it as amicus curie) argued that these short prayers and others like them at graduation exercises are of profound meaning to many students and parents throughout this country who consider that due respect and acknowledgment for divine guidance and for the deepest spiritual aspirations of our people ought to be expressed at an event as important in life as a graduation. We assume this to be so in addressing the difficult case now before us, for the significance of the prayers lies also at the heart of Daniel and Deborah Weisman's case.
Deborah's graduation was held on the premises of Nathan Bishop
Middle School on June 29, 1989. Four days before the ceremony,
Weisman, in his individual capacity as a Providence taxpayer and
next friend of Deborah, sought a temporary restraining order in
United States District Court for the District of Rhode Island to
prohibit school officials from including an invocation or
in the graduation ceremony....
These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are, in a fair and real sense, obligatory, though the school district does not require attendance as a condition for receipt of the diploma.
This case does not require us to revisit the difficult questions dividing us in recent cases, questions of the definition and full scope of the principles governing the extent of permitted accommodation by the State for the religious beliefs and practices of many of its citizens. For without reference to those principles in other contexts, the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the city of Providence is an unconstitutional one. We can decide the case without reconsidering the general constitutional framework by which public schools' efforts to accommodate religion are measured. The government 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. Conducting this formal religious observance conflicts with settled rules pertaining to prayer exercises for students, and that suffices to determine the question before us.
The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which "establishes a [state] religion or religious faith, or tends to do so." The State's involvement in the school prayers challenged today violates these central principles.
That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and, from a constitutional perspective, it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State. The reason for the choice of a rabbi is not disclosed by the record, but the potential for divisiveness over the choice of a particular member of the clergy to conduct the ceremony is apparent.
Divisiveness, of course, can attend any state decision respecting religions, and neither its existence nor its potential necessarily invalidates the State's attempts to accommodate religion in all cases. The potential for divisiveness is of particular relevance here, though, because it centers around an overt religious exercise in a secondary school environment where, as we discuss below, subtle coercive pressures exist, and where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation.
The State's role did not end with the decision to include a prayer and with the choice of clergyman. Principal Lee provided Rabbi Gutterman with a copy of the "Guidelines for Civic Occasions" and advised him that his prayers should be nonsectarian. Through these means, the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State's displeasure in this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that 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 (1962), and that is what the school officials attempted to do.
Petitioners argue, and we find nothing in the case to refute it, that the directions for the content of the prayers were a good-faith attempt by the school to ensure that the sectarianism which is so often the flashpoint for religious animosity be removed from the graduation ceremony. The concern is understandable, as a prayer which uses ideas or images identified with a particular religion may foster a different sort of sectarian rivalry than an invocation or benediction in terms more neutral. The school's explanation, however, does not resolve the dilemma caused by its participation. The question is not the good faith of the school in attempting to make the prayer acceptable to most persons, but the legitimacy of its undertaking that enterprise at all when the object is to produce a prayer to be used in a formal religious exercise which students, for all practical purposes are obliged to attend.
We are asked to recognize the existence of a practice of nonsectarian prayer, prayer within the embrace of what is known as the Judeo-Christian tradition, prayer which is more acceptable than one which, for example, makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint. There may be some support, as an empirical observation, to the statement of the Court of Appeals for the Sixth Circuit, picked up by Judge Campbell's dissent in the Court of Appeals in this case, that there has emerged in this country a civic religion, one which is tolerated when sectarian exercises are not. If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself.
The First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten, then, that, while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference. James Madison, the principal author of the Bill of Rights, did not rest his opposition to a religious establishment on the sole ground of its effect on the minority. A principal ground for his view was: [E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. Memorial and Remonstrance Against Religious Assessments (1785)...
The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State, and thus put school-age children who objected in an untenable position. We turn our attention now to consider the position of the students, both those who desired the prayer and she who did not.
To endure the speech of false ideas or offensive content and
then to counter it is part of learning how to live in a
society, a society which insists upon open discourse towards the
a tolerant citizenry. And tolerance presupposes
some mutuality of obligation. It is argued that our
constitutional vision of a free society requires confidence in our
ability to accept or reject ideas of which we do not approve, and
prayer at a high school graduation does nothing more than offer a
choice. By the time they are seniors, high school students no
have been required to attend classes and assemblies and to
assignments exposing them to ideas they find distasteful or
absurd, or all of these. Against this background, students may
it an odd measure of justice to be subjected during the course of
educations to ideas deemed offensive and irreligious, but to be
a brief, formal prayer ceremony that the school offers in return.
argument cannot prevail, however....
We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district's supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture, standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi's prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that, for her, the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.
Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position. Research in psychology supports 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. To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use social pressure to enforce orthodoxy than it may use more direct means.
The injury caused by the government's action, and the reason
why Daniel and Deborah Weisman object to it, is that the State, in
school setting, in effect required participation in a religious
exercise. It is, we concede, a brief exercise during which the
individual can concentrate on joining its message, meditate on her
religion, or let her mind wander. But the embarrassment and the
intrusion of the religious exercise cannot be refuted by arguing
these prayers, and similar ones to be said in the future, are of a
minimis character. To do so would be an affront to the rabbi who
offered them and to all those for whom the prayers were an
and profound recognition of divine authority. And for the same
we think that the intrusion is greater than the two minutes or so
time consumed for prayers like these. Assuming, as we must, that
prayers were offensive to the student and the parent who now
the intrusion was both real and, in the context of a secondary
a violation of the objectors' rights. That the intrusion was in
course of promulgating religion that sought to be civic or
nonsectarian, rather than pertaining to one sect, does not lessen
offense or isolation to the objectors. At best it narrows their
at worst, increases their sense of isolation and affront.
There was a stipulation in the District Court that attendance at graduation and promotional ceremonies is voluntary. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that, in our society and in our culture, high school graduation is one of life's most significant occasions. A school rule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term "voluntary," for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts....
The Government's argument gives insufficient recognition to the
real conflict of conscience faced by the young student. The
the Government's position is that, with regard to a civic, social
occasion of this importance, it is the objector, not the majority,
must take unilateral and private action to avoid compromising
scruples, hereby electing to miss the graduation exercise. This
conventional First Amendment analysis on its head. It is a tenet
First Amendment that the State cannot require one of its citizens
forfeit his or her rights and benefits as the price of resisting
conformance to state-sponsored religious practice. To say that a
student must remain apart from the ceremony at the opening
and closing benediction is to risk compelling conformity in an
environment analogous to the classroom setting, where we have said
risk of compulsion is especially high....
Three Terms ago, I joined an opinion recognizing that the Establishment Clause must be construed in light of the "[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage." That opinion affirmed that "the meaning of the Clause is to be determined by reference to historical practices and understandings." It said that "[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause."
These views, of course, prevent me from joining today's opinion, which is conspicuously bereft of any reference to history. In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court - with nary a mention that it is doing so - lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. Today's opinion shows more forcefully than volumes of argumentation why our Nation's protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.
Justice Holmes' aphorism that "a page of history is worth a volume of logic," applies with particular force to our Establishment Clause jurisprudence. As we have recognized, our interpretation of the Establishment Clause should "compor[t] with what history reveals was the contemporaneous understanding of its guarantees."
The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition....In addition to this general tradition of prayer at public ceremonies, there exists a more specific tradition of invocations and benedictions at public school graduation exercises. By one account, the first public high school graduation ceremony took place in Connecticut in July1868 - the very month, as it happens, that the Fourteenth Amendment (the vehicle by which the Establishment Clause has been applied against the States) was ratified - when "15 seniors from the Norwich Free Academy marched in their best Sunday suits and dresses into a church hall and waited through majestic music and long prayers." As the Court obliquely acknowledges in describing the "customary features" of high school graduations, and as respondents do not contest, the invocation and benediction have long been recognized to be "as traditional as any other parts of the [school] graduation program and are widely established."
The Court presumably would separate graduation invocations and benedictions from other instances of public "preservation and transmission of religious beliefs" on the ground that they involve "psychological coercion." I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to "requir[e] scrutiny more commonly associated with interior decorators than with the judiciary." But interior decorating is a rock-hard science compared to psychology practiced by amateurs. A few citations of "[r]esearch in psychology" that have no particular bearing upon the precise issue here cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing. The Court's argument that state officials have "coerced" students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent....
The Court identifies two "dominant facts" that it says dictate its ruling that invocations and benedictions at public school graduation ceremonies violate the Establishment Clause. Neither of them is, in any relevant sense, true.
The Court declares that students' "attendance and participation in the [invocation and benediction] are, in a fair and real sense, obligatory." But what exactly is this "fair and real sense"? According to the Court, students at graduation who want "to avoid the fact or appearance of participation" in the invocation and benediction are psychologically obligated by "public pressure, as well as peer pressure, . . . to stand as a group or, at least, maintain respectful silence" during those prayers. This assertion - the very linchpin of the Court's opinion - is almost as intriguing for what it does not say as for what it says. It does not say, for example, that students are psychologically coerced to bow their heads, place their hands in a Durer-like prayer position, pay attention to the prayers, utter "Amen," or in fact pray. (Perhaps further intensive psychological research remains to be done on these matters.) It claims only that students are psychologically coerced "to stand . . . or, at least, maintain respectful silence." Both halves of this disjunctive (both of which must amount to the fact or appearance of participation in prayer if the Court's analysis is to survive on its own terms) merit particular attention.
To begin with the latter: the Court's notion that a student who simply sits in "respectful silence" during the invocation and benediction (when all others are standing) has somehow joined - or would somehow be perceived as having joined - in the prayers is nothing short of ludicrous. We indeed live in a vulgar age. But surely "our social conventions" have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence. Since the Court does not dispute that students exposed to prayer at graduation ceremonies retain (despite "subtle coercive pressures" the free will to sit, there is absolutely no basis for the Court's decision. It is fanciful enough to say that "a reasonable dissenter," standing head erect in a class of bowed heads, "could believe that the group exercise signified her own participation or approval of it." It is beyond the absurd to say that she could entertain such a belief while pointedly declining to rise.
But let us assume the very worst, that the nonparticipating graduate is "subtly coerced" . . . to stand! Even that half of the disjunctive does not remotely establish a "participation" (or an "appearance of participation") in a religious exercise. The Court acknowledges that, "in our culture, standing . . . can signify adherence to a view or simple respect for the views of others." (Much more often the latter than the former, I think, except perhaps in the proverbial town meeting, where one votes by standing.) But if it is a permissible inference that one who is standing is doing so simply out of respect for the prayers of others that are in progress, then how can it possibly be said that a "reasonable dissenter . . . could believe that the group exercise signified her own participation or approval"? Quite obviously, it cannot. I may add, moreover, that maintaining respect for the religious observances of others is a fundamental civic virtue that government (including the public schools) can and should cultivate - so that, even if it were the case that the displaying of such respect might be mistaken for taking part in the prayer, I would deny that the dissenter's interest in avoiding even the false appearance of participation constitutionally trumps the government's interest in fostering respect for religion generally....
I also find it odd that the Court concludes that high school graduates may not be subjected to this supposed psychological coercion, yet refrains from addressing whether "mature adults" may. Ante, at 593. I had thought that the reason graduation from high school is regarded as so significant an event is that it is generally associated with transition from adolescence to young adulthood. Many graduating seniors, of course, are old enough to vote. Why, then, does the Court treat them as though they were first-graders? Will we soon have a jurisprudence that distinguishes between mature and immature adults?
The other "dominant fac[t]" identified by the Court is that
officials direct the performance of a formal religious exercise"
school graduation ceremonies. "Direct[ing] the
performance of a formal religious exercise" has a sound of liturgy
it, summoning up images of the principal directing acolytes where
carry the cross, or showing the rabbi where to unroll the Torah. A
Court professing to be
engaged in a "delicate and fact-sensitive" line-drawing
better describe what it means as "prescribing the content
of an invocation and benediction." But even that would be false.
the record shows is that principals of the Providence public
acting within their delegated authority, have invited clergy to
invocations and benedictions at graduations; and that Principal
invited Rabbi Gutterman, provided him a two-page pamphlet,
the National Conference of Christians and Jews, giving general
on inclusive prayer for civic occasions, and advised him that his
prayers at graduation should be nonsectarian. How these facts can
fairly be transformed into the charges that Principal Lee
controlled the content of [Rabbi Gutterman's] prayer",
that school officials "monitor prayer," and attempted to
"`compose official prayers,'" and that the "government
involvement with religious activity in this case is pervasive," is
difficult to fathom....
The deeper flaw in the Court's opinion does not lie in its wrong
answer to the question whether there was state-induced
coercion; it lies, rather, in the Court's making violation of the
Establishment Clause hinge on such a precious question. The
that was a hallmark of historical establishments of religion was
coercion of religious orthodoxy and of financial support by force
law and threat of penalty. Typically, attendance at the state
church was required; only clergy of the official church
lawfully perform sacraments; and dissenters, if tolerated, faced
array of civil disabilities.
The Establishment Clause was adopted to prohibit such an establishment of religion at the federal level (and to protect state establishments of religion from federal interference). I will further acknowledge for the sake of argument that, as some scholars have argued, by 1790, the term "establishment" had acquired an additional meaning - "financial support of religion generally, by public taxation" - that reflected the development of "general or multiple" establishments, not limited to a single church. But that would still be an establishment coerced by force of law. And I will further concede that our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington, quoted earlier, down to the present day, has, with a few aberrations, ruled out of order government-sponsored endorsement of religion - even when no legal coercion is present, and indeed even when no ersatz, "peer-pressure" psycho-coercion is present - where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ). But there is simply no support for the proposition that the officially sponsored nondenominational invocation and benediction read by Rabbi Gutterman - with no one legally coerced to recite them - violated the Constitution of the United States. To the contrary, they are so characteristically American they could have come from the pen of George Washington or Abraham Lincoln himself.....
Another happy aspect of the case is that it is only a jurisprudential disaster, and not a practical one. Given the odd basis for the Court's decision, invocations and benedictions will be able to be given at public school graduations next June, as they have for the past century and a half, so long as school authorities make clear that anyone who abstains from screaming in protest does not necessarily participate in the prayers. All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation program, to the effect that, while all are asked to rise for the invocation and benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. That obvious fact recited, the graduates and their parents may proceed to thank God, as Americans have always done, for the blessings He has generously bestowed on them and on their country.I must add one final observation: the Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration - no, an affection - for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily. The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated. To deprive our society of that important unifying mechanism in order to spare the nonbeliever what seems to me the minimal inconvenience of standing, or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law.
For the foregoing reasons, I dissent.