The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_1014/90_1014.zc1

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SUPREME COURT OF THE UNITED STATES
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No. 90-1014
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ROBERT E. LEE, individually and as PRINCIPAL OF
NATHAN BISHOP MIDDLE SCHOOL, et al.,
PETITIONERS v. DANIEL WEISMAN etc.
on writ of certiorari to the united states court of
appeals for the first circuit
[June 24, 1992]

  Justice Blackmun, with whom Justice Stevens and
Justice O'Connor join, concurring.
  Nearly half a century of review and refinement of
Establishment Clause jurisprudence has distilled one clear
understanding: Government may neither promote nor
affiliate itself with any religious doctrine or organization,
nor may it obtrude itself in the internal affairs of any
religious institution.  The application of these principles to
the present case mandates the decision reached today by
the Court.
                            I
  This Court first reviewed a challenge to state law under
the Establishment Clause in Everson v. Board of Education,
330 U. S. 1 (1947).  Relying on the history of the Clause,
and the Court's prior analysis, Justice Black outlined the
considerations that have become the touchstone of Estab-
lishment Clause jurisprudence:  Neither a State nor the
Federal Government can pass laws which aid one religion,
aid all religions, or prefer one religion over another.
Neither a State nor the Federal Government, openly or
secretly, can participate in the affairs of any religious
organization and vice versa.  -In the words of Jefferson,
the clause against establishment of religion by law was
intended to erect `a wall of separation between church and
State.'-  Everson, 330 U. S., at 16, quoting Reynolds v.
United States, 98 U. S. 145, 164 (1879).  The dissenters
agreed: -The Amendment's purpose . . . was to create a
complete and permanent separation of the spheres of
religious activity and civil authority by comprehensively
forbidding every form of public aid or support for religion.-
330 U.S., at 31-32 (Rutledge, J., dissenting, joined by
Frankfurter, Jackson, and Burton, JJ.).
  In Engel v. Vitale, 370 U. S. 421 (1962), the Court consid-
ered for the first time the constitutionality of prayer in a
public school.  Students said aloud a short prayer selected
by the State Board of Regents: -Almighty God, we acknowl-
edge our dependence upon Thee, and we beg Thy blessings
upon us, our parents, our teachers and our Country.-  Id.,
at 422.  Justice Black, writing for the Court, again made
clear that the First Amendment forbids the use of the
power or prestige of the government to control, support, or
influence the religious beliefs and practices of the American
people.  Although the prayer was -denominationally
neutral- and -its observance on the part of the students
[was] voluntary,- id., at 430, the Court found that it
violated this essential precept of the Establishment Clause.
  A year later, the Court again invalidated government-
sponsored prayer in public schools in Abington School
District v. Schempp, 374 U. S. 203 (1963).  In Schempp, the
school day for Baltimore, Maryland, and Abington Town-
ship, Pennsylvania, students began with a reading from the
Bible, or a recitation of the Lord's Prayer, or both.  After a
thorough review of the Court's prior Establishment Clause
cases, the Court concluded:
-[T]he Establishment Clause has been directly consid-
ered by this Court eight times in the past score of years
and, with only one Justice dissenting on the point, it
has consistently held that the clause withdrew all
legislative power respecting religious belief or the
expression thereof.  The test may be stated as follows:
what are the purpose and the primary effect of the
enactment?  If either is the advancement or inhibition
of religion, then the enactment exceeds the scope of
legislative power as circumscribed by the Constitution.-
Id., at 222.

Because the schools' opening exercises were government-
sponsored religious ceremonies, the Court found that the
primary effect was the advancement of religion and held,
therefore, that the activity violated the Establishment
Clause.  Id., at 223-224.
  Five years later, the next time the Court considered
whether religious activity in public schools violated the
Establishment Clause, it reiterated the principle that
government -may not aid, foster, or promote one religion or
religious theory against another or even against the
militant opposite.-  Epperson v. Arkansas, 393 U. S. 97, 104
(1968).  -`If [the purpose or primary effect] is the advance-
ment or inhibition of religion then the enactment exceeds
the scope of legislative power as circumscribed by the
Constitution.'-  Id., at 107 (quoting Schempp, 374 U. S., at
222).  Finding that the Arkansas law aided religion by
preventing the teaching of evolution, the Court invalidated
it.
  In 1971, Chief Justice Burger reviewed the Court's past
decisions and found: -Three . . . tests may be gleaned from
our cases.-  Lemon v. Kurtzman, 403 U. S. 602, 612.  In
order for a statute to survive an Establishment Clause
challenge, -[f]irst, the statute must have a secular legisla-
tive purpose; second, its principal or primary effect must be
one that neither advances nor inhibits religion; finally the
statute must not foster an excessive government entangle-
ment with religion.-  Id., at 612-613 (internal quotation
marks and citations omitted).  After Lemon, the Court
continued to rely on these basic principles in resolving
Establishment Clause disputes.
  Application of these principles to the facts of this case is
straightforward.  There can be -no doubt- that the -invoca-
tion of God's blessings- delivered at Nathan Bishop Middle
School -is a religious activity.-  Engel, 370 U. S., at 424.  In
the words of Engel, the Rabbi's prayer -is a solemn avowal
of divine faith and supplication for the blessings of the
Almighty.  The nature of such a prayer has always been
religious.-  Ibid.  The question then is whether the govern-
ment has -plac[ed] its official stamp of approval- on the
prayer.  Id., at 429.  As the Court ably demonstrates, when
the government -compose[s] official prayers,- id., at 425,
selects the member of the clergy to deliver the prayer, has
the prayer delivered at a public school event that is
planned, supervised and given by school officials, and
pressures students to attend and participate in the prayer,
there can be no doubt that the government is advancing
and promoting religion.  As our prior decisions teach us,
it is this that the Constitution prohibits.
                           II
  I join the Court's opinion today because I find nothing in
it inconsistent with the essential precepts of the Establish-
ment Clause developed in our precedents.  The Court holds
that the graduation prayer is unconstitutional because the
State -in effect required participation in a religious exer-
cise.-  Ante, at 14.  Although our precedents make clear
that proof of government coercion is not necessary to prove
an Establishment Clause violation, it is sufficient.  Govern-
ment pressure to participate in a religious activity is an
obvious indication that the government is endorsing or
promoting religion.
  But it is not enough that the government restrain from
compelling religious practices: it must not engage in them
either.  See Schempp, 374 U. S., at 305 (Goldberg, J.,
concurring).  The Court repeatedly has recognized that a
violation of the Establishment Clause is not predicated on
coercion.  See, e.g., id., at 223; id., at 229 (Douglas, J.,
concurring); Wallace v. Jaffree, 472 U. S. 38, 72 (1985)
(O'Connor, J., concurring in judgment) (-The decisions [in
Engel and Schempp] acknowledged the coercion implicit
under the statutory schemes, but they expressly turned only
on the fact that the government was sponsoring a mani-
festly religious exercise- (citation omitted)); Comm. for
Public Ed. v. Nyquist, 413 U. S. 756, 786 (1973) (-[P]roof of
coercion . . . [is] not a necessary element of any claim under
the Establishment Clause-).  The Establishment Clause
proscribes public schools from -conveying or attempting to
convey a message that religion or a particular religious
belief is favored or preferred,- County of Allegheny v.
ACLU,  492 U. S. 573, 593 (1989) (internal quotations
omitted) (emphasis in original), even if the schools do not
actually -impos[e] pressure upon a student to participate
in a religious activity.-  Westside Community Bd. of Ed.
v. Mergens, 496 U. S. 226, 261 (1990) (Kennedy, J.,
concurring).
  The scope of the Establishment Clause's prohibitions
developed in our case law derives from the Clause's pur-
poses.  The First Amendment encompasses two distinct
guarantees-the government shall make no law respecting
an establishment of religion or prohibiting the free exercise
thereof-both with the common purpose of securing
religious liberty.  Through vigorous enforcement of both
clauses, we -promote and assure the fullest possible scope
of religious liberty and tolerance for all and . . . nurture the
conditions which secure the best hope of attainment of that
end.-  Schempp, 374 U. S., at 305 (Goldberg, J., concurring).
  There is no doubt that attempts to aid religion through
government coercion jeopardize freedom of conscience.
Even subtle pressure diminishes the right of each individu-
al to choose voluntarily what to believe.  Representative
Carroll explained during congressional debate over the
Establishment Clause: -[T]he rights of conscience are, in
their nature, of peculiar delicacy, and will little bear the
gentlest touch of governmental hand.-  I Annals of Cong.
757 (August 15, 1789).
  Our decisions have gone beyond prohibiting coercion,
however, because the Court has recognized that -the fullest
possible scope of religious liberty,- Schempp, 374 U. S., at
305 (Goldberg, J., concurring), entails more than freedom
from coercion.  The Establishment Clause protects religious
liberty on a grand scale; it is a social compact that guaran-
tees for generations a democracy and a strong religious
community-both essential to safeguarding religious liberty.
-Our fathers seem to have been perfectly sincere in their
belief that the members of the Church would be more
patriotic, and the citizens of the State more religious, by
keeping their respective functions entirely separate.-
Religious Liberty, in Essays and Speeches of Jeremiah S.
Black 53 (C. Black ed. 1885) (Chief Justice of the Common-
wealth of Pennsylvania).
  The mixing of government and religion can be a threat to
free government, even if no one is forced to participate.
When the government puts its imprimatur on a particular
religion, it conveys a message of exclusion to all those who
do not adhere to the favored beliefs.  A government cannot
be premised on the belief that all persons are created equal
when it asserts that God prefers some.  Only -[a]nguish,
hardship and bitter strife- result -when zealous religious
groups struggl[e] with one another to obtain the Govern-
ment's stamp of approval.-  Engel, 370 U. S., at 429; see
also Lemon, 403 U. S., at 622-623; Aguilar v. Felton, 473
U. S. 402, 416 (1985) (Powell, J., concurring).  Such a
struggle can -strain a political system to the breaking
point.-  Walz v. Tax Commission, 397 U. S. 664, 694 (1970)
(opinion of Harlan, J.).
  When the government arrogates to itself a role in
religious affairs, it abandons its obligation as guarantor of
democracy.  Democracy requires the nourishment of
dialogue and dissent, while religious faith puts its trust in
an ultimate divine authority above all human deliberation.
When the government appropriates religious truth, it
-transforms rational debate into theological decree.-
Nuechterlein, Note, The Free Exercise Boundaries of
Permissible Accommodation Under the Establishment
Clause, 99 Yale L.J. 1127, 1131 (1990).  Those who disagree
no longer are questioning the policy judgment of the elected
but the rules of a higher authority who is beyond reproach.
  Madison warned that government officials who would use
religious authority to pursue secular ends -exceed the
commission from which they derive their authority and are
Tyrants.  The People who submit to it are governed by laws
made neither by themselves, nor by an authority derived
from them, and are slaves.-  Memorial and Remonstrance
against Religious Assessments (1785) in The Complete
Madison 300 (S. Padover, ed. 1953).  Democratic govern-
ment will not last long when proclamation replaces persua-
sion as the medium of political exchange.
   Likewise, we have recognized that -[r]eligion flourishes
in greater purity, without than with the aid of Gov[ern-
ment].-  Id., at 309.  To -make room for as wide a variety
of beliefs and creeds as the spiritual needs of man deem
necessary,- Zorach v. Clauson, 343 U. S. 306, 313 (1952),
the government must not align itself with any one of them.
When the government favors a particular religion or sect,
the disadvantage to all others is obvious, but even the
favored religion may fear being -taint[ed] . . . with a
corrosive secularism.-  Grand Rapids School Dist. v. Ball,
473 U. S. 373, 385 (1985).  The favored religion may be
compromised as political figures reshape the religion's
beliefs for their own purposes; it may be reformed as
government largesse brings government regulation.
Keeping religion in the hands of private groups minimizes
state intrusion on religious choice and best enables each
religion to -flourish according to the zeal of its adherents
and the appeal of its dogma.-  Zorach, 343 U. S., at 313.
  It is these understandings and fears that underlie our
Establishment Clause jurisprudence.  We have believed
that religious freedom cannot exist in the absence of a free
democratic government, and that such a government cannot
endure when there is fusion between religion and the
political regime.  We have believed that religious freedom
cannot thrive in the absence of a vibrant religious commu-
nity and that such a community cannot prosper when it is
bound to the secular.  And we have believed that these were
the animating principles behind the adoption of the
Establishment Clause.  To that end, our cases have prohib-
ited government endorsement of religion, its sponsorship,
and active involvement in religion, whether or not citizens
were coerced to conform.
  I remain convinced that our jurisprudence is not mis-
guided, and that it requires the decision reached by the
Court today.  Accordingly, I join the Court in affirming the
judgment of the Court of Appeals.