Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/ri3.asc

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 Madison's failure to keep pace with his principles in the
face of congressional pressure cannot erase the principles.  He
admitted to backsliding, and explained that he had made the
content of his wartime proclamations inconsequential enough to
mitigate much of their impropriety.  See ibid.; see also Letter
from J. Madison to E. Livingston (July 10, 1822), in 5 The
Founders' Constitution, at 105.  While his writings suggest mild
variations in his interpretation of the Establishment Clause,
Madison was no different in that respect from the rest of his
political generation.  That he expressed so much doubt about the
constitutionality of religious proclamations, however, suggests a
brand of separationism stronger even than that embodied in our
traditional jurisprudence.  So too does his characterization of
public subsidies for legislative and military chaplains as
unconstitutional -establishments,- see supra, at 16-17, and
n. 6, for the federal courts, however expansive their general
view of the Establishment Clause, have upheld both practices.
See Marsh v. Chambers, 463 U. S. 783 (1983) (legislative
chaplains); Katcoff v. Marsh, 755 F. 2d 223 (CA2 1985) (military
chaplains).

 To be sure, the leaders of the young Republic engaged in
some of the practices that separationists like Jefferson and
Madison criticized.  The First Congress did hire institutional
chaplains, see Marsh v. Chambers, supra, at 788, and Presidents
Washington and Adams unapologetically marked days of "public
thanksgiving and prayer," see R. Cord, Separation of Church and
State 53 (1988).  Yet in the face of the separationist dissent,
those practices prove, at best, that the Framers simply did not
share a common understanding of the Establishment Clause, and, at
worst, that they, like other politicians, could raise
constitutional ideals one day and turn their backs on them the
next.  "Indeed, by 1787 the provisions of the state bills of
rights had become what Madison called mere `paper parchments'
expressions of the most laudable sentiments, observed as much in
the breach as in practice." Kurland, The Origins of the Religion
Clauses of the Constitution, 27 Wm. & Mary L. Rev. 839, 852
(1986) (footnote omitted).  Sometimes the National Constitution
fared no better.  Ten years after proposing the First Amendment,
Congress passed the Alien and Sedition Acts, measures patently
unconstitutional by modern standards.  If the early Congress's
political actions were determinative, and not merely relevant,
evidence of constitutional meaning, we would have to gut our

current First Amendment doctrine to make room for political
censorship.

 While we may be unable to know for certain what the
Framers meant by the Clause, we do know that, around the time of
its ratification, a respectable body of opinion supported a
considerably broader reading than petitioners urge upon us.  This
consistency with the textual considerations is enough to preclude
fundamentally reexamining our settled law, and I am accordingly
left with the task of considering whether the state practice at
issue here violates our traditional understanding of the Clause's
proscriptions.

III

 While the Establishment Clause's concept of neutrality is
not self-revealing, our recent cases have invested it with
specific content:  the state may not favor or endorse either
religion generally over nonreligion or one religion over others.
See, e.g., Allegheny County, 492 U. S., at 589-594, 598-602;
Texas Monthly, 489 U. S., at 17 (plurality opinion); id., at 28
(Blackmun, J., concurring in judgment); Edwards v. Aguillard, 482
U. S., at 593; School Dist. of Grand Rapids, 473 U. S., at
389-392; Wallace v. Jaffree, 472 U. S., at 61; see also Laycock,
Formal, Substantive, and Disaggregated Neutrality Toward
Religion, 39 De Paul L.  Rev. 993 (1990); cf. Lemon v. Kurtzman,
403 U. S. 602, 612-613 (1971).  This principle against favoritism
and endorsement has become the foundation of Establishment Clause
jurisprudence, ensuring that religious belief is irrelevant to
every citizen's standing in the political community, see
Allegheny County, supra, at 594; J. Madison, Memorial and
Remonstrance Against Religious Assessments (1785), in 5 The
Founders' Constitution, at 82-83, and protecting religion from
the demeaning effects of any governmental embrace, see id., at
83.  Now, as in the early Republic, "religion & Govt. will both
exist in greater purity, the less they are mixed together."
Letter from J. Madison to E. Livingston (10 July 1822), in 5 The
Founders' Constitution, at 106.  Our aspiration to religious
liberty, embodied in the First Amendment, permits no other
standard.

A

 That government must remain neutral in matters of
religion does not foreclose it from ever taking religion into
account.  The State may -accommodate- the free exercise of
religion by relieving people from generally applicable rules that
interfere with their religious callings.  See, e.g., Corporation
of Presiding Bishop of Church of Jesus Christ of Latter-Day
Saints v. Amos, 483 U. S. 327 (1987); see also Sherbert v.
Verner, 374 U. S. 398 (1963).  Contrary to the views of some,
such accommodation does not necessarily signify an official
endorsement of religious observance over disbelief.

 In everyday life, we routinely accommodate religious
beliefs that we do not share.  A Christian inviting an Orthodox
Jew to lunch might take pains to choose a kosher restaurant; an
atheist in a hurry might yield the right of way to an Amish man
steering a horse-drawn carriage.  In so acting, we express
respect for, but not endorsement of, the fundamental values of
others.  We act without expressing a position on the theological
merit of those values or of religious belief in general, and no
one perceives us to have taken such a position.

 The government may act likewise.  Most religions
encourage devotional practices that are at once crucial to the
lives of believers and idiosyncratic in the eyes of nonadherents.
By definition, secular rules of general application are drawn
from the nonadherent's vantage and, consequently, fail to take
such practices into account.  Yet when enforcement of such rules
cuts across religious sensibilities, as it often does, it puts
those affected to the choice of taking sides between God and
government.  In such circumstances, accommodating religion
reveals nothing beyond a recognition that general rules can
unnecessarily offend the religious conscience when they offend
the conscience of secular society not at all.  Cf. Welsh v.
United States, 398 U. S. 333, 340 (1970) (plurality opinion).
Thus, in freeing the Native American Church from federal laws
forbidding peyote use, see Drug Enforcement Administration
Miscellaneous Exemptions, 21 C. F. R.  1307.31 (1991), the
government conveys no endorsement of peyote rituals, the Church,
or religion as such; it simply respects the centrality of peyote
to the lives of certain Americans.  See Note, The Free Exercise
Boundaries of Permissible Accommodation Under the Establishment
Clause, 99 Yale L. J. 1127, 1135-1136 (1990).

B

 Whatever else may define the scope of accommodation
permissible under the Establishment Clause, one requirement is
clear:  accommodation must lift a discernible burden on the free
exercise of religion.  See Allegheny County, supra, at 601, n.
51; id., at 631-632 (opinion of O'Connor, J.); Corporation of
Presiding Bishop, supra, at 348 (O'Connor, J., concurring in
judgment); see also Texas Monthly, supra, at 18, 18-19, n. 8
(plurality opinion); Wallace v. Jaffree, 472 U. S., at 57-58, n.
45.  But see Allegheny County, supra, at 663, n. 2 (opinion of
Kennedy, J.).  Concern for the position of religious individuals
in the modern regulatory state cannot justify official solicitude
for a religious practice unburdened by general rules; such
gratuitous largesse would effectively favor religion over
disbelief.  By these lights one easily sees that, in sponsoring
the graduation prayers at issue here, the State has crossed the
line from permissible accommodation to unconstitutional
establishment.

 Religious students cannot complain that omitting prayers
from their graduation ceremony would, in any realistic sense,
-burden- their spiritual callings.  To be sure, many of them
invest this rite of passage with spiritual significance, but they
may express their religious feelings about it before and after
the ceremony.  They may even organize a privately sponsored
baccalaureate if they desire the company of likeminded students.
Because they accordingly have no need for the machinery of the
State to affirm their beliefs, the government's sponsorship of
prayer at the graduation ceremony is most reasonably understood
as an official endorsement of religion and, in this instance, of
Theistic religion.  One may fairly say, as one commentator has
suggested, that the government brought prayer into the ceremony
"precisely because some people want a symbolic affirmation that
government approves and endorses their religion, and because many
of the people who want this affirmation place little or no value
on the costs to religious minorities." Laycock, Summary and
Synthesis:  The Crisis in Religious Liberty, 60 Geo. Wash. L.
Rev. 841, 844 (1992).

 Petitioners would deflect this conclusion by arguing that
graduation prayers are no different from presidential religious
proclamations and similar official -acknowledgments- of religion
in public life.  But religious invocations in Thanksgiving Day
addresses and the like, rarely noticed, ignored without effort,
conveyed over an impersonal medium, and directed at no one in
particular, inhabit a pallid zone worlds apart from official
prayers delivered to a captive audience of public school students
and their families.  Madison himself respected the difference
between the trivial and the serious in constitutional practice.
Realizing that his contemporaries were unlikely to take the
Establishment Clause seriously enough to forgo a legislative
chaplainship, he suggested that -[r]ather than let this step
beyond the landmarks of power have the effect of a legitimate
precedent, it will be better to apply to it the legal aphorism de
minimis non curat lex . . . .- Madison's -Detached Memoranda-
559; see also Letter from J. Madi- son to E. Livingston, 10 July
1822, in 5 The Founders' Constitution, at 105.  But that logic
permits no winking at the practice in question here.  When public
school officials, armed with the State's authority, convey an
endorsement of religion to their students, they strike near the
core of the Establishment Clause.  However -ceremonial- their
messages may be, they are flatly unconstitutional.

 Justice Scalia, with whom The Chief Justice, Justice
White, and Justice Thomas join, dissenting.

 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.- Allegheny
County v. Greater Pittsburgh ACLU, 492 U. S. 573, 657, 670 (1989)
(Kennedy, J., concurring in judgment in part and dissenting in
part).

 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.  See Durham v. United States, 94 U. S. App. D. C. 228,
214 F. 2d 862 (1954).  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.

I


 Justice Holmes' aphorism that "a page of history is worth
a volume of logic," New York Trust Co. v. Eisner, 256 U. S.  345,
349 (1921), 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."
Lynch v. Donnelly, 465 U.S. 668, 673 (1984).  "[T]he line we must
draw between the permissible and the impermissible is one which
accords with history and faithfully reflects the understanding of
the Founding Fathers." Abington School District v. Schempp, 374
U. S. 203, 294 (1963) (Brennan, J., concurring). "[H]istorical
evidence sheds light not only on what the draftsmen intended the
Establishment Clause to mean, but also on how they thought that
Clause applied- to contemporaneous practices."  Marsh v.
Chambers, 463 U. S. 783, 790 (1983).  Thus, "[t]he existence from
the beginning of the Nation's life of a practice, [while] not
conclusive of its constitutionality . . . , is a fact of
considerable import in the interpretation- of the Establishment
Clause."  Walz v. Tax Comm'n of New York City, 397 U. S. 664, 681
(1970) (Brennan, J., concurring).

 The history and tradition of our Nation are replete with
public ceremonies featuring prayers of thanksgiving and petition.
Illustrations of this point have been amply provided in our prior
opinions, see, e.g., Lynch, supra, at 674-678; Marsh, supra, at
786-788; see also Wallace v.  Jaffree, 472 U. S. 38, 100-103
(1985) (Rehnquist, J., dissenting); Engel v. Vitale, 370 U. S.
421, 446-450, and n.  3 (1962) (Stewart, J., dissenting), but
since the Court is so oblivious to our history as to suggest that
the Constitution restricts -preservation and transmission of
religious beliefs . . . to the private sphere,- ante, at 10, it
appears necessary to provide another brief account.

 From our Nation's origin, prayer has been a prominent
part of governmental ceremonies and proclamations.  The
Declaration of Independence, the document marking our birth as a
separate people, -appeal[ed] to the Supreme Judge of the world
for the rectitude of our intentions- and avowed -a firm reliance
on the protection of divine Providence.- In his first inaugural
address, after swearing his oath of office on a Bible, George
Washington deliberately made a prayer a part of his first
official act as President: "it would be peculiarly improper to
omit in this first official act my fervent supplications to that
Almighty Being who rules over the universe, who presides in the
councils of nations, and whose providential aids can supply every
human defect, that His benediction may consecrate to the
liberties and happiness of the people of the United States a
Government instituted by themselves for these essential
purposes." Inaugural Addresses of the Presidents of the United
States 2 (1989).

Such supplications have been a characteristic feature of
inaugural addresses ever since.  Thomas Jefferson, for example,
prayed in his first inaugural address: "may that Infinite Power
which rules the destinies of the universe lead our councils to
what is best, and give them a favorable issue for your peace and
prosperity." Id., at 17.  In his second inaugural address,
Jefferson acknowledged his need for divine guidance and invited
his audience to join his prayer:

      I shall need, too, the favor of that Being in whose
      hands we are, who led our fathers, as Israel of old,
      from their native land and planted them in a country
      flowing with all the necessaries and comforts of life;
      who has covered our infancy with His providence and our
      riper years with His wisdom and power, and to whose
      goodness I ask you to join in supplications with me
      that He will so enlighten the minds of your servants,
      guide their councils, and prosper their measures that
      whatsoever they do shall result in your good, and shall
      secure to you the peace, friendship, and approbation of
      all nations. Id., at 22-23.

Similarly, James Madison, in his first inaugural address, placed
his confidence

"in the guardianship and guidance of that Almighty Being whose
power regulates the destiny of nations, whose blessings have been
so conspicuously dispensed to this rising Republic, and to whom
we are bound to address our devout gratitude for the past, as
well as our fervent supplications and best hopes for the future."
Id., at 28. Most recently, President Bush, continuing the
tradition established by President Washington, asked those
attending his inauguration to bow their heads, and made a prayer
his first official act as President.  Id., at 346.

 Our national celebration of Thanksgiving likewise dates
back to President Washington.  As we recounted in Lynch,

 -The day after the First Amendment was proposed, Congress
urged President Washington to proclaim `a day of public
thanksgiving and prayer, to be observed by acknowledging with
grateful hearts the many and signal favours of Almighty God.'
President Washington proclaimed November 26, 1789, a day of
thanksgiving to `offe[r] our prayers and supplications to the
Great Lord and Ruler of Nations, and beseech him to pardon our
national and other transgressions . . . .'- 465 U. S., at 675, n.
2 (citations omitted). This tradition of Thanksgiving
Proclamations-with their religious theme of prayerful gratitude
to God-has been adhered to by almost every President.  Id., at
675, and nn.  2 and 3; Wallace v. Jaffree, supra, at 100-103
(Rehnquist, J., dissenting).

 The other two branches of the Federal Government also
have a long-established practice of prayer at public events.  As
we detailed in Marsh, Congressional sessions have opened with a
chaplain's prayer ever since the First Congress.  463 U. S., at
787-788.  And this Court's own sessions have opened with the
invocation -God save the United States and this Honorable Court
since the days of Chief Justice Marshall.  1 C. Warren, The
Supreme Court in United States History 469 (1922).

/* However, this does not address the issue of forcing school
children to pray. Obviously once a person reaches the status of
US Supreme Court Judge, he or she will be willing to object or
ignore religious features which are annoying or repulsive to
them. */


 In addition to this general tradition of prayer at public
ceremonies, there exists a more specific tradition of invoca-
tions and benedictions at public-school graduation exercises.  By
one account, the first public-high-school graduation ceremony
took place in Connecticut in July 1868-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.- Brodinsky,
Commencement Rites Obsolete?  Not At All, A 10-Week Study Shows,
Updating School Board Policies, Vol. 10, p. 3 (Apr. 1979).  As
the Court obliquely acknowledges in describing the -customary
features- of high school graduations, ante, at 3-4, 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." H.
McKown, Commencement Activities 56 (1931); see also Brodinsky,
supra, at 5.

II

 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, see Allegheny County v.
Greater Pittsburgh ACLU, 492 U. S. 573 (1989), has come to
-requir[e] scrutiny more commonly associated with interior
decorators than with the judiciary.- American Jewish Congress v.
Chicago, 827 F. 2d 120, 129 (Easterbrook, J., dissenting).  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, ante, at 14, 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 Establish- ment
Clause.  Ante, at 7.  Neither of them is in any relevant sense
true.

A

 The Court declares that students' -attendance and
participation in the [invocation and benediction] are in a fair
and real sense obligatory.- Ibid.  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,-
ante, at 8, 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.  Ante, at 13.  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 prayer like 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.- Ibid. (emphasis added).  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,- ibid., 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,- ante, at
8) the free will to sit, cf. ante, at 14, 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,- ibid.  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." Ante, at 13.  (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.

 The opinion manifests that the Court itself has not given
careful consideration to its test of psychological coercion.  For
if it had, how could it observe, with no hint of concern or
disapproval, that students stood for the Pledge of Allegiance,
which immediately preceded Rabbi Gutterman's invocation?  Ante,
at 4.  The government can, of course, no more coerce political
orthodoxy than religious orthodoxy.  West Virginia Board of
Education v. Barnette, 319 U. S.  624, 642 (1943).  Moreover,
since the Pledge of Allegiance has been revised since Barnette to
include the phrase -under God,- recital of the Pledge would
appear to raise the same Establishment Clause issue as the
invocation and benediction.  If students were psychologically
coerced to remain standing during the invocation, they must also
have been psychologically coerced, moments before, to stand for
(and thereby, in the Court's view, take part in or appear to take
part in) the Pledge.  Must the Pledge therefore be barred from
the public schools (both from graduation ceremonies and from the
classroom)?  In Barnette we held that a public-school student
could not be compelled to recite the Pledge; we did not even hint
that she could not be compelled to observe respectful
silence-indeed, even to stand in respectful silence-when those
who wished to recite it did so.  Logically, that ought to be the
next project for the Court's bulldozer.

 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 14.  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?

/* Compare this with the comments of Justice White in Casey. */

B

 The other -dominant fac[t]- identified by the Court is
that -[s]tate officials direct the performance of a formal
religious exercise- at school graduation ceremonies.  Ante, at 7.
-Direct[ing] the performance of a formal religious exercise- has
a sound of liturgy to it, summoning up images of the principal
directing acolytes where to 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, ante, at 18, would
better describe what it means as -prescribing the content of an
invocation and benediction.- But even that would be false.  All
the record shows is that principals of the Providence public
schools, acting within their delegated authority, have invited
clergy to deliver invocations and benedictions at graduations;
and that Principal Lee invited Rabbi Gutterman, provided him a
two-page flyer, prepared by the National Conference of Christians
and Jews, giving general advice 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 -directed and controlled the
content of [Rabbi Gutterman's] prayer,- ante, at 9, that school
officials -monitor prayer,- ante, at 10, and attempted to
-`compose official prayers,'- ante, at 9, and that the
-government involvement with religious activity in this case is
pervasive,- ante, at 7, is difficult to fathom.  The Court
identifies nothing in the record remotely suggesting that school
officials have ever drafted, edited, screened or censored
graduation prayers, or that Rabbi Gutterman was a mouthpiece of
the school officials.

 These distortions of the record are, of course, not
harmless error: without them the Court's solemn assertion that
the school officials could reasonably be perceived to be
-enforc[ing] a religious orthodoxy,- ante, at 13, would ring as
hollow as it ought.

III

 The deeper flaw in the Court's opinion does not lie in
its wrong answer to the question whether there was state- induced
-peer-pressure- coercion; it lies, rather, in the Court's making
violation of the Establishment Clause hinge on such a precious
question.  The coercion that was a hallmark of historical
establishments of religion was coercion of religious orthodoxy
and of financial support by force of law and threat of penalty.
Typically, attendance at the state church was required; only
clergy of the official church could lawfully perform sacraments;
and dissenters, if tolerated, faced an array of civil
disabilities.  L. Levy, The Establishment Clause 4 (1986).  Thus,
for example, in the colony of Virginia, where the Church of
England had been established, ministers were required by law to
conform to the doctrine and rites of the Church of England; and
all persons were required to attend church and observe the
Sabbath, were tithed for the public support of Anglican
ministers, and were taxed for the costs of building and repairing
churches.  Id., at 3-4.

 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.  Id., at 8-9.  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, see Holy
Trinity Church v. United States, 143 U.S. 457 (1892), 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.

 Thus, while I have no quarrel with the Court's general
proposition that the Establishment Clause -guarantees that
government may not coerce anyone to support or participate
in religion or its exercise,- ante, at 8, I see no warrant for
expanding the concept of coercion beyond acts backed by threat of
penalty-a brand of coercion that, happily, is readily discernible
to those of us who have made a career of reading the disciples of
Blackstone rather than of Freud.  The Framers were indeed opposed
to coercion of religious worship by the National Government; but,
as their own sponsorship of nonsectarian prayer in public events
demon- strates, they understood that -[s]peech is not coercive;
the listener may do as he likes.- American Jewish Congress v.
Chicago, 827 F. 2d, at 132 (Easterbrook, J., dissenting).

 This historical discussion places in revealing
perspective the Court's extravagant claim that the State has -for
all practical purposes,- ante, at 9, and -in every practical
sense,- ante, at 18, compelled students to participate in prayers
at graduation.  Beyond the fact, stipulated to by the parties,
that attendance at graduation is voluntary, there
is nothing in the record to indicate that failure of attending
students to take part in the invocation or benediction was
subject to any penalty or discipline.  Contrast this with, for
example, the facts of Barnette: Schoolchildren were required by
law to recite the Pledge of Allegiance; failure to do so resulted
in expulsion, threatened the expelled child with the prospect of
being sent to a reformatory for criminally inclined juveniles,
and subjected his parents to prosecution (and incarceration) for
causing delinquency.  319 U. S., at 629-630.  To characterize the
-subtle coercive pressures,- ante, at 8, allegedly present here
as the -practical- equiva- lent of the legal sanctions in
Barnette is . . . well, let me just say it is not a -delicate and
fact-sensitive- analysis.

 The Court relies on our -school prayer- cases, Engel v.
Vitale, 370 U. S. 421 (1962), and Abington School District
v. Schempp, 374 U. S. 203 (1963).  Ante, at 13.  But whatever the
merit of those cases, they do not support, much less compel, the
Court's psycho-journey.  In the first place, Engel and Schempp do
not constitute an exception to the rule, distilled from
historical practice, that public ceremonies may include prayer,
see supra, at 3-6; rather, they simply do not fall within the
scope of the rule (for the obvious reason that school instruction
is not a public ceremony).  Second, we have made clear our
understanding that school prayer occurs within a framework in
which legal coercion to attend school (i. e., coercion under
threat of penalty) provides the ultimate backdrop.  In Schempp,
for example, we emphasized that the prayers were -prescribed as
part of the curricular activities of students who are required by
law to attend school.- 374 U. S., at 223 (emphasis added).
Engel's suggestion that the school-prayer program at issue
there-which permitted students -to remain silent or be excused
from the room,- 370 U. S., at 430-involved -indirect coercive
pressure,- id., at 431, should be understood against this
backdrop of legal coer- cion.  The question whether the opt-out
procedure in Engel sufficed to dispel the coercion resulting from
the mandatory attendance requirement is quite different from the
question whether forbidden coercion exists in an environment
utterly devoid of legal compulsion.  And finally, our
school-prayer cases turn in part on the fact that the classroom
is inherently an instructional setting, and daily prayer
there-where parents are not present to counter -the students'
emulation of teachers as role models and the children's
susceptibility to peer pressure,- Edwards v.  Aguillard, 482 U.
S. 578, 584 (1987)-might be thought to raise special concerns
regarding state interference with the liberty of parents to
direct the religious upbringing of their children: -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.- Ibid.; see Pierce v. Society of Sisters, 268 U. S. 510,
534-535 (1925).  Voluntary prayer at graduation-a one-time
ceremony at which parents, friends and relatives are present-can
hardly be thought to raise the same concerns.

IV

 Our religion-clause jurisprudence has become bedeviled
(so to speak) by reliance on formulaic abstractions that are not
derived from, but positively conflict with, our long- accepted
constitutional traditions.  Foremost among these has been the
so-called Lemon test, see Lemon v. Kurtzman, 403 U. S. 602,
612-613 (1971), which has received well- earned criticism from
many members of this Court.  See, e.g., Allegheny County, 492 U.
S., at 655-656 (opinion of Kennedy, J.); Edwards v. Aguillard,
supra, at 636-640 (1987) (Scalia, J., dissenting); Wallace v.
Jaffree, 472 U. S.  at 108-112 (Rehnquist, J., dissenting);
Aguilar v. Felton, 473 U. S. 402, 426-430 (1985) (O'Connor, J.,
dissenting); Roemer v. Maryland Bd. of Public Works, 426 U. S.
736, 768-769 (1976) (White, J., concurring in judgment).  The
Court today demonstrates the irrelevance of Lemon by essentially
ignoring it, see ante, at 7, and the interment of that case may
be the one happy byproduct of the Court's otherwise lamentable
decision.  Unfortunately, however, the Court has replaced Lemon
with its psycho-coercion test, which suffers the double
disability of having no roots whatever in our people's historic
practice, and being as infinitely expandable as the reasons for
psychotherapy itself.

 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 benedic- tions
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.

 * * *

The reader has been told much in this case about the personal
interest of Mr. Weisman and his daughter, and very little about
the personal interests on the other side.  They are not
inconsequential.  Church and state would not be such a difficult
subject if religion were, as the Court apparently thinks it to
be, some purely personal avocation that can be indulged entirely
in secret, like pornography, in the privacy of one's room.  For
most believers it is not that, and has never been.  Religious men
and women of almost all denominations have felt it necessary to
acknowledge and beseech the blessing of God as a people, and not
just as individuals, because they believe in the -protection of
divine Providence,- as the Declaration of Independence put it,
not just for individuals but for societies; because they believe
God to be, as Washington's first Thanksgiving Proclamation put
it, the -Great Lord and Ruler of Nations.- One can believe in the
effectiveness of such public worship, or one can deprecate and
deride it.  But the longstanding American tradition of prayer at
official ceremonies displays with unmistakable clarity that the
Establishment Clause does not forbid the government to
accommodate it.

 The narrow context of the present case involves a
community's celebration of one of the milestones in its
young citizens' lives, and it is a bold step for this Court to
seek to banish from that occasion, and from thousands of similar
celebrations throughout this land, the expression of gratitude to
God that a majority of the community wishes to make.  The issue
before us today is not the abstract philosophical question
whether the alternative of frustrating this desire of a religious
majority is to be preferred over the alternative of imposing
-psychological coercion,- or a feeling of exclusion, upon
nonbelievers.  Rather, the question is whether a mandatory choice
in favor of the former has been imposed by the United States
Constitution.  As the age-old practices of our people show, the
answer to that question is not at all in doubt.

 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 can not 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.