Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, May 23, 1993 TAG: 9308230272
SECTION: EDITORIAL PAGE: C3 EDITION: METRO
SOURCE: MATTHEW J. FRANCK
DATELINE: LENGTH: Long
But then, we at the college level have not been affected - yet - by the nonsensical rulings of the U.S. Supreme Court on the place of traditional, nonsectarian prayer in the graduation ceremonies of American public schools.
On June 24 of last year, the court decided Lee vs. Weisman, a case arising out of the Providence, R.I., public schools. It seems that at Deborah Weisman's middle-school graduation in 1989, a rabbi had delivered nonsectarian invocation and benediction prayers, and her father won, ultimately, a permanent injunction barring any similar occurrence at her coming high-school graduation.
The opinion of the court in this 5-4 decision by Justice Anthony Kennedy - completely devoid of any support in the historical traditions of public schooling, the meaning of the First Amendment, the practices of American public life since the founding, or common sense - held that some kind of ``psychological coercion'' takes place when young people are asked to rise and/or remain silent during commencement for the expression of prayers whose sentiments they may not share.
The court limited its ruling to public primary and secondary schools, presumably on the inexplicable grounds that there is one First Amendment for youngsters and another for adults and thus presumably also on the grounds that a substantial distinction in maturity, relevant for its new ``psycho-coercion test,'' can be made between graduating high-school seniors and graduating college seniors.
Ever since the ruling, the American Civil Liberties Union has swung into action according to the Washington Post, ``mail[ing] letters to more than 15,000 school superintendents across the nation, urging them to prohibit prayer.'' The same article reported that recalcitrant Loudoun County, planning to include student-led prayer at this year's commencements, is being threatened with a lawsuit by the ACLU.
I'm no lawyer (is there some generic disclaimer in these matters?), but my advice to school officials who wish to continue this harmless and beneficent practice, itself a better teacher of religious toleration than any dozen Supreme Court rulings, is: Ignore the ACLU, make one or two minor adjustments, and you can evade the impact of this absurd judicial pronouncement entirely.
Student-led rather than clergy-delivered prayer, as is contemplated up in Loudoun County, may not be a bad alternative. But it will not fully accomplish the object of satisfying the court's new test without an additional step. And if that step is taken, clergy rather than students may continue to lead the way.
The crucial adjustment was suggested by Justice Antonin Scalia, dissenting in the Weisman case: ``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.''
To those officials who are attracted to Justice Scalia's advice, but are understandably leery because it comes from a justice who dissented in the case, follow closely:
The controlling opinion by Justice Anthony Kennedy was entirely predicated on the questionable notion that a reasonable person, observing students remaining respectfully silent during prayer, could assume that all of them are participating in the prayer.
Thus, the court reasoned, in the case of those students who dissent from the sentiments expressed, but who are ``for all practical purposes ... obliged to attend,'' and who are silent from ``public ... as well as peer pressure,'' it is reasonable for them to ``believe that the group exercise signifie[s] [their] own participation or approval of it.''
Four other justices (Harry Blackmun, David Souter, John Paul Stevens, and Sandra Day O'Connor) either wrote or joined concurring opinions that went still further, stressing that coercion was not the central issue; f-b f+ianyo public accommodation of religion in this setting violated the Constitution, no matter if anyone ``felt'' coerced ``psychologically'' or not.
But four justices are not a majority, and it was the fifth justice, Kennedy, who spoke for the court. And here's the point: Kennedy made the ``coercion'' issue the sticking point in the commencement setting, Scalia (writing for himself, William Rehnquist, Byron White and Clarence Thomas) provided a perfectly sensible suggestion for obviating the whole issue of ``coercion,'' and Kennedy never contradicted Scalia or in any way criticized his suggestion as improper.
Neither did any of the concurring justices explicitly take issue with Scalia's suggestion. The principles of their separate opinions certainly did call it into question. However, nothing in Kennedy's opinion points in the direction the other four took. They said, never mind the coercion thing, any commencement prayer is an ``establishment of religion.'' Kennedy (again, for the court) said coercion is the thing. And Scalia shows us a way around that problem.
By my reckoning, therefore, the nine justices can be counted in another, albeit unconventional, manner. Add Kennedy to the four dissenters, as one plausibly may, and we have five justices who would conceivably have no problem with a public-school graduation ceremony that included in its program a statement that respectful listening is not the functional equivalent of joining in a public prayer.
The majority gets to keep a component of commencement exercises that it values highly as imparting the spiritual aspect of a public celebration. The dissenting minority, whose view is entitled to respect, is publicly acknowledged, and is asked to be politely silent and as tolerant as the majority. And the school principal can thumb his nose at the ACLU. \
Matthew J. Franck is an assistant professor of political science at Radford University.
by CNB