Daniel Weisman, Etc. v. Robert E. Lee

TORRUELLA, Before CAMPBELL and Appeals, Court of United States BOWNES, Judges, Senior Circuit First Circuit. Judge. Circuit May Heard TORRUELLA, Judge. Circuit July Decided appeal

This is an from United States of Rhode District Court for the District presented The issue for review is Island. invoking deity de- whether a benediction clergy by a at an livered member graduation violates annual of the First the Establishment Clause as con- Amendment of the Constitution Supreme Court under the strued prong test. second Lemon 602, 612-13, Kurtzman, 2105, 2111-12, 29 L.Ed.2d 745 (1971). The district court held that it did. (D.R.I.1990). agreement in the sound and We are pellucid opinion of the district court and see no reason to elaborate further. Affirmed.

BOWNES, Senior Circuit (concurring).

Although very district court wrote a join affirming, I good opinion, which I compelled mаke some additional com- am signifi- my ments of own because of the strong case and the emotions cance of this it and other Establishment Clause generate.1 cases point by report The Boston Globe out that there is formidable 1. I am troubled authority public: Island have condemning prayer at a school in Rhode that officials Judge Boyle's ruling by intentionally violated prayest, not be as And when thou thou shall Globe, having graduation. Boston they pray hypocrites love to are: for disregard for at 67. This blatant June standing synagogues and the corners approval!,] applause, drew “howls of the law and cheers” at the streets, they may be seen of graduation. Similar disobe- prayest, thy enter into men.... when thou closet, decisions in dience of the law followed door, pray shut the and when thou has Times, See N.Y. other recent Sept. cases. ye pray, thy But when Father in secret. (Football Prayer stirring Ban repetitions, as the heathen do: use not vain South) (disobedience Doug- Anger Jager they they heard for their think shall be District, F.2d 824 las Cir.1989)). speaking. much

1091 fifty years ago, hundred and controlled three the Court’s cases prohibiting Over prayer. Jaffree, Wallace v. Roger was banished from the school Williams 472 U.S. 38, for, 2479, among 105 Bay Colony oth- 86 Massachusetts L.Ed.2d 29 “heresies,” (daily moment of silence arguing expressly civil er Graham, Stone v. prayer); 39, completely separate 449 government should be 192, 101 S.Ct. 66 L.Ed.2d 199 religion.2 (post from He travelled south ing rooms); of ten commandments school the state of Rhode founded what became Abington School District v. Schempp, Island, colony which was the first to re- 203, 1560, 83 S.Ct. 10 L.Ed.2d 844 quire separation of church and state.3 (1963) (daily reading); Engel v. Vi Bible people that time the of Rhode Island Since tale, 421, 1261, 370 U.S. 8 L.Ed.2d probing sporadically have been involved (1962) (daily prayer). Appellants claim permissible intersections between reli- graduation that a benediction is more like e.g., Lynch v. gion government. legislative prayer approved in Marsh v. 1355, Donnelly, 465 U.S. Chambers, 463 U.S. Kurtzman, L.Ed.2d 604 (1983), and therefore controlling. schoоl cases are not DiCenso). (1971) (deciding Robinson again this volatile and troublesome Once 1. THE TEXT THE OF CONSTITUTION. issue is before us. begin my discussion with an examina are asked to determine whether the We tion of the text of the Constitution. Unlike prohibits public pray- Establishment Clause documents, political earlier such as the graduation at a middle school4 er Independence,5 Declaration of the Constitu Broadly, requires ex- ceremony. this us to secular, completely invoking tion is neither and in- amine the text of the Constitution referring any deity.6 nor to “God” or The meaning on the terpret its based various respect prohibits First Amendment “laws analysis. nar- tools of constitutional its ing religion.” the estаblishment of aspect, Supreme we must examine rowest amend. I.7 Const. precedent Court Establishment Clause scope prohibition proven at a middle The of that determine whether ceremony extremely imple- is similar to delineate and school difficult society. enough contemporary in the classroom to be ment in The words James). (King "religion” only In the Constitution of Matthew 6: 5-7 ("no religious appears in Article VI test shall be contributing in his exile was his con- 2. factor required”). Bible, interpretation of the which troversial was guide political as well as for the Similarly, applied been to the states Puritans. ary question this case raises the subsidi- 7. The Amendment has read the Constitution. through of how to in Cantwell the Fourteenth Amendment Connecticut, Rhode Island and Providence Plan- 3. Charter of (1940). Establishment Clause L.Ed. 1213 The tations, 8, 1663, reprinted July in Sources Our applied to the states in Everson v. Board (R. 1978). Perry ed. Liberties Education, 330 U.S. 67 S.Ct. L.Ed. school, implies, (1947). dispute as the name is the whether the 4. A middle There was a over grade after school that children attend passed Congress Amend- the Fourteenth high and before school. thought incorporate that it the Bill weight Rights. dispute on the This focused Legal Amicus Curie National Foundation given Congress’s consideration that should be religious imagery of the would have us read the after the Fourteenth of the "Blaine Amendment” There is no Declaration into the Constitution. enacted. The Amend- Amendment had been reading. justification for such a The omission applied language expressly ment would have Deity to a the Constitution was of a reference the states. First Amendment to similar to the inadvertent; nor did remain unnoticed. not Marsh, it Abington, See also (Bren- U.S. at 103 S.Ct. at 3344 (Brennan, concurring) (discussing 1588-91 Pfeffer, nan, J., dissenting) ‍​‌​​‌‌​​‌‌‌​​​​‌​‌‌​​​‌​​​​​​​‌​‌‌‌​‌‌​​​​​‌‌‌‌​‍Deity (quoting Amendment). gen- incorporation History, & Constitutional 23 J. Church American Meyer, fact, erally, Blaine Amendment and (1981)). striking A. it is a State (1951). Rights, Bill 64 Harv.L.Rev. of the Establishment Clause. affirmation preliminary inquiries, “plain meaning” us some indication the Amendment help in determining of the text is of little meaning. The use of the word “re of its case, results sо we must turn to the sweep a broader indicates specting” interpretation that has evolved “establishment,” given to thus should be throughout past years. two hundred many actions that could lead to prohibiting religion. the establishment trying meaning to create from the ACLU, -, Allegheny v. U.S. 109 Clause, courts and commen- S.Ct. tators constructed historical have various (Stevens, J., concurring part, dissenting in arguments. decidedly But historians have concerning (“ ‘Respecting’ means part) mixed views about what “establishment” But it also means Judges or with reference to. meant to the framers. and histori- ‘reverence,’ ‘good is respect agree ans have about what with been unable —that will,’ Taking writing into acсount this richer ideas .... informed the Constitu- tion,8 Clause, exactly in the in ban what occurred debates meaning, the Establishment (the surrounding specific ratification intent religion, especially ning that concern laws framers),9 impact the “reli- of the or what pay homage to reli prohibits those post-rat- gious character” of various Lemon, 403 U.S. at gion.”); see also practices ification should have on the mean- 2111; Engel, 370 at 82 91 S.Ct. at U.S. ing we to the Constitution.10 addition, of “reli at 1269. use gion” implies prohi rather than “church” spent time The Court has considerable against merely more than an estab bition history considering debating of the Everson, e.g., national church. lished clauses, rеligion and each time the results (“Madison at 519 330 U.S. at Compare Wal have been inconclusive. lace, 79-84, not have confused ‘church’ and ‘reli could 472 U.S. at 105 S.Ct. at 2501- (O’Connor, J., (“The gion’ concurring) primary established church’ and an es ‘an 04 ”). Beyond Rehnquist’s religion.’ these issue raised Justice dissent tablishment of exactly Virginia Religious incorporating "the” Statute of debate surrounds what 8.Extensive Liberty” support proposition that Madi the Constitution meant or intended. framers of single major son believed the intent of the amendment distinct strands have been At least three isolated, prevent was to the establishment of a national identified with an individual: Jef each Wallace, (such England). ferson, church as the Church of Williams and Madison. Jefferson fo (Rehn 72 S.Ct. at 2511 105 separation "wall of between church cused on a 4 J., dissenting). approach quist, This has been protect the state from the church. and state” to See, Wallace, criticized. 472 U.S. at States, See, e.g., Reynolds v. United J., (O’Connor, concurring). S.Ct. at 2501 (1879); 25 L.Ed. 244 Letter from Thomas others, Dodge and Jefferson to Nehemiah Danbury Baptist Legislative history virtually Association Committee of (Jan. 1, 1802) non-existent for Kurland, Marsh, reprinted P. provision. in 5 J., (Brennan, dissenting). see also Ever But see Founders' Constitution 96 at 3347 Coun 517; J., son, (Stevens, ty Allegheny, 330 U.S. at 67 S.Ct. at But 109 S.Ct. at 3129-30 cf. Wallace, Wallace, (Rehn concurring part, dissenting part); 472 U.S. at 91-100, (Rehn J., ("The dissenting) U.S. at S.Ct. at 2507-12 quist, Establishment Clause J., dissenting). freighted quist, expressly of Jefferson’s mis has been leading metaphor nearly years.... for He any seem to detached observer as less century Religious practice in the nineteenth contemporary history as to than ideal source argument meaning persuasive not a about the religion meaning of the First the Amendment.”). of the clauses of the Constitution because historians have not thought "hedge Williams religious practices ed that the various separation between the [should exist] or wall of government century in the nineteenth were garden wilderness of the and the of the church expansive more than at the time of ratification. protect from the world” in order to Thanksgiving Christmas and national became corruption generally, time, See P. Mil holidays general of the world. example. at that for See ler, Botein, Roger Early Contribution to ly Religious Williams: His Dimensions of (1953). Beeman, Madison’s view American Tradition reprinted American State S. Bo in R. Carter, competition among both Beyond was that sects Ori tein E. Confederation: political everyone’s gins best interest. National the Constitution and American Rehnquist distinguish Identity (discussing be the increase in Justice has tried to legis government religious practice by Madison "as an advocate of sensible tween century). compromise advocate of nineteenth lative and not as an (quotation fact that our Pres or Judaism” the historical and citation omit- is whether public prayers ted)). generally Abington, long have called for idents dispositive on the con 232-65, should be (Brennan, J., of thanks 83 S.Ct. at 1576-94 stitutionality Jefferson, concurring); T. Autobiography not.”) with Wallace I think schools. reprinted in The Founders’ Constitution (Rehn 91-114, 105 S.Ct. at 2507-19 U.S. at (“The establishing religious bill free- Marsh, J., dissenting); compare quist, dom ... meant to within the man- [include] 786-92, 103 S.Ct. at 3333-36 U.S. at protection, tle of the Jew and the its Gen- tile, Mahometan, the Christian and the (discuss (Brennan, dissenting) ‍​‌​​‌‌​​‌‌‌​​​​‌​‌‌​​​‌​​​​​​​‌​‌‌‌​‌‌​​​​​‌‌‌‌​‍3347-49 every Hindoo and Infidel of denom- practices to which the ing the extent ination.”). An prob- additional facet of the Congress the intent behind and First reveal lem of framers’ intent is what was thе interpretations of the Constitu support their framers’ intention about intent. Everson, 8-16, compare tion); 330 U.S. at argued original have the in- Scholars Everson, 28-43, 507-12 tention of the framers that their inten- J., dissenting); (Rutledge, S.Ct. at 517-25 interpreting tions were irrelevant the 425-30, Engel, also 82 S.Ct. see 370 U.S. See, Powell, The Constitution. H.J. Abington, generally at 1264-67. See Original Understanding Original In- of (Bren at 1576-94 U.S. at 83 S.Ct. tention, (1985). Harv.L.Rev. nan, J., (scholarly concurring) discussion of interpreting the history the in the role of 2. THE SCHOOL PRAYER CASES. Clause). to re It is useless Establishment continuing ground The this debate. hash Although may the have sent con- Court trodden so much that it is barren has been fusing signals on the theoretical or histori- power. The meaning persuasive of underpinnings cal of the Establishment record” is inconclusive on the “historical Clause, strictly consistently in- it has in the minds various cross-currents terpreted prohibitions of the Establish- tangled and often framers. Because involving prayer in cases in Clause record, unlikely it is conflicting historical public The schools. Court matter, that, we can ever empirical as particularly vigilant has monitor- been of the authors original intention know ing compliance with the Establishment Even if we could the Constitution.11 secondary elementary Clause intent, framers’ that would reconstruct public schools schools. Families entrust necessarily determinative children, of their with the education expe case, years hundred givеn our two trust on the under- condition changing rience with Constitution pur- standing that the classroom will not See, e.g., County Alle circumstances. advance views posely be used to (“Perhaps in the gheny, S.Ct. private conflict with the beliefs prohibitions early republic days of [the family. or his or her of the student were under of the Establishment Clause] 585, 578, Aguillard, 482 U.S. Edwards v. diversity within protect stood (1987). 2573, 2578, 96 L.Ed.2d 510 107 S.Ct. today they recognized are Christianity, but consistently struck down equal Court religious liberty and guaranteeing as atheist, practices that allow or mandate infidel, laws or or the adher ity to the schools,12and it has prayer in the faith such as Islam forms of a non-Christian ent of White, Tropics H. Metahis history Discourse of the Estаblish- 11. The debate about Imagination highlights tory: in Nineteenth- problems of historical The Historical ment Clause (1973). Europe theory opinions. Century Historians re- in the Court's and, selecting through certain facts cover "facts” 38, 2479, facts, Jaffree, 472 U.S. 105 S.Ct. 12. Wallace v. construct universe of available from the (1985) (daily moment of silence explain problem. historical 86 L.Ed.2d 29 expressly narratives that Graham, prayer); v. Stone interpretations not “facts” but are Historical 192, 66 L.Ed.2d 199 from the facts se- rather are narratives drawn White, in school (posting commandments by generally, ten See H. lected the historian. White, Schempp, rooms); Abington School District History, reprinted H. Interpretation in any at a formal school statute that fails to meet of these never allowed requirements Education v. violates the Establishment Board function. But see — U.S.-, Edwards, 482 U.S. Clause. Mergens, (1990) (allowing Only Christian club one activity applied voluntary extracurricular case since Lemon has not Clause as school). Aguil some form of this test. Edwards v. public lard, n. 482 U.S. is not argue that this case appellants (referring 2577 n. 96 L.Ed.2d 510 prayer cases be controlled Chambers, voluntary, graduation attendance cause (1983), 77 L.Ed.2d 1019 which place takes off-cam graduation sometimes schools); also did not involve see year. They only once pus, and it occurs ACLU, Allegheny v. acceptable contend that -, 3086, 3100 n. 106 L.Ed.2d prevailing Lemon test or either the under (1989) (collecting cases that have used standard deline exception to that under the test); Rapids Grand School Dist. argu Such in Marsh v. Chambers. ated 373, 383, Ball, rejected other courts. ments have been (1985)(“We par have Douglas County School e.g., Jager v. every case ticularly relied on Lemon Cir.1989) (pro District, 862 F.2d relationship involving the sensitive between high school football hibiting prayer before government the education of Marsh), rejecting the use of game and children.”). U.S.-, denied, 109 S.Ct. cert. v. Cen 104 L.Ed.2d 988 Graham carefully properly The district court Dist., 608 tral determined that the applied this test and 1985) (D.Iowa (prohibiting at 531 and benedictions at practice of invocations rejecting appli graduation and high school second, graduations ran afoul of the Marsh)] Schempp, also 374 cation of see “effect,” prong of the Lemon test. 224-25, (“[T]he at 1572-73 at 83 S.Ct. U.S. individual students absent

fact that Purpose A. Secular a furnishes no defense to' themselves ... purpose prong secular of Lemon unconstitutionality under the Es claim of requires pre us to determine whether Clause.”); Engel, 370 U.S. at tablishment practice ques purpose dominant (“[T]he fact that the at 1266 82 S.Ct. question is not wheth tion is secular. is volun [prayer] part on the of students any purpose, or could secular er there is to free it from the tary serve сan[not] predominant rather whether the actual clause.”). limitations of the Establishment Wallace, religion. purpose is to endorse 56, 105 2489; 472 U.S. at S.Ct. at see also THE LEMON TEST. at at 1368 Lynch, 465 U.S. S.Ct. acceptability practic- evaluating the In (“The purpose prong ... asks whether the Clause, ‍​‌​​‌‌​​‌‌‌​​​​‌​‌‌​​​‌​​​​​​​‌​‌‌‌​‌‌​​​​​‌‌‌‌​‍the es under the Establishment government’s purpose actual is to endorse generally applied a derivative of Court require disapprove religion.”). That or three-pronged “Lemon” test: precisely tailored to the Establish ment “is First, [practice] must have a secular purpose assuring ment Clause’s second, principal primary or purpose; its intentionally endorse reli Government that neither advances effect must be one Wallace, gion religious practice.” or religion; finally, must not nor inhibits [it] (O’Connor,J., at at U.S. government entan- ‘an excessive foster pur concurring). examining the secular glement religion.’ pose, the Court has examined whether the 602, 612-13, purpose and not a sham.” Kurtzman, stated is “sincere Lemon v. Edwards, 2105, 2111-12, 29 L.Ed.2d 745 U.S. (Louisiana’s (citations omitted). or creation science S.Ct. 8 L.Ed.2d 601 Vitale, (daily prayer). reading); Engel (1963) (daily bible ‘ 798-99, act, although purporting to foster aca- 463 U.S. at 103 S.Ct. at Lemon, freedom,” 3339-40 (citing did not have a fact demic Stone, 2112-16). purpose); example, For secular (“[T]he Ten Command- provision zoning Court struck down a of a undeniably a sacred text ments ordinance that allowed churches “veto” Faiths, legisla- and no liquor and Christian power Jewish over licenses within 500 feet supposed pur- secular Den, tive recitation of a of the church. Larkin v. Grendel’s fact.”). pose can us to that blind (1982). Implicit prong, in this and central reciting prayer before a Although any understanding of the First Amend- appellants ceremony might, as graduation ment, government is the belief that effects argue, have the residual sectarian should not become involved with the deter- occasion,13 primary solemnizing the religious practice. mination of religious. Specifically invoking

purpose is blessing of “God” on the the name and Although party strongly neither ad- supplication graduation, ceremony is a arguments prong, vances on this am for the academic achieve- thanks “God” entanglement struck instances of graduation and a represented by Jager, this case. the court found no good of such hope for the continuation entanglement problem the school because purely fortune. It does not serve did not monitor the content of the solemnizing function. A predominantly Jager, speaker. or choose the 862 F.2d at ceremony pray- not need a does Appel- 831. Here school officials did both. it. er to solemnize lants make much of the fact that the school suitably has chosen to non-denom- B. Effect Secular officials inational because school pamphlet a entitled distributed “Guidelines to the Justice O’Connor has tried focus guidelines for Civic Occasions.” These govern- on the secular effect discussion suggest prayers kind of should be what religion: is ment’s endorsement of “What supervision written. This of the content of government practice not is that a crucial impli- prayers the the school officials communicating a mes- have the effect of prong. The entanglement cates the school disap- sage government of endorsement regulating the impermissibly is involved Lynch, religion.” at proval of U.S. addition, prayer. In unlike content of the (O’Connor, J., at concur- Jager, both Stein school teachers held, ring). the district court it is self- As speaker gave prayer the who the at chose prayer given by religious a a evident that graduation. This has the effect of involv- by public school teachers person chosen among ing choosing teachers in those vari- government message of communicates that is religious groups, activity ous an religion. endorsement surely prohibited by the Establishment Entanglement Excessive C. Clause. prong pro- entanglement The excessive 4. MARSH. the “may actions that interfere with

hibits the Lemon Lynch, independence Recognizing the strictness institutions.” follow the (O’Connor, test, we urge that appellants 104 S.Ct. at 1355 the of the application particular, In is the concurring). prong exception limited to Chambers, v. test delineated in Marsh impermissibly with the state concerned L.Ed.2d 1019 overseeing religious affairs. monitoring or or the "under God” many groups on coins that advocate "God” It is ironic that as the use of (or "religious liberty"), argue Pledge Allegiance, support that to language in the religious They empha- or effect. surprised has no intent position. I am "solemnizing function" of an invocation size the explicit- argument support an groups would graduation and other ceremo- or benediction at religion society relegates in our ly the value of Inevitably, they analogize prayer public nies. merely ceremonial. to the letter, dead where is a such situations special takes on up prayer highlighted is Marsh, Supreme Court (1983). In significance graduation. Legisla Nebraska of the held the session with a legislative begin each ture ap help the does not decision The Stein “unique” on the based was prayer. panel Stein, a Sixth Circuit pellants. argument that the historical specific and bene down a school invocation struck prayers of legislative find did not framers violating the diction as because the Constitution fensive (6th Cir. Stein, F.2d Clause. legislative pray aрproved Congress first opinion. 1987). judge wrote Each 791, 103 S.Ct. at ers. opinion, Merritt, in the court’s Judge applied exception thought that the Marsh the content held that prayer but to school special circum- history and those That Es question violated prayer in middle school present at are not stances not suf it was because Clause tablishment specifically has The Court graduations. Judge Mil- ficiently non-denominational. is approach a historical stated that “[s]uch that the added concurred result burn proper roles determining the useful not examining applied test should be Lemon schools, since' and state in church benedictions. the invocations and virtually non- were public schools free dissented, stating that the Wellford the Constitution at the time existent applied and that under test should Edwards, at 583 n. adopted.” ac court was test before 4; Rapids n. Grand particu split panel, ceptable. Such Ball, 390 n. Dist. v. School contrary to what larly the result when n. seek, au persuasive is not appellants indulged “never (the Court thority. respect assumption Marsh similar ] [to opening of 'the addition, judges analysis prayers conducted Douglas through Jager they parse day.”); majority, see also in which Dist., if 862 F.2d 824 determine the content inap- offensive, troubling. that Marsh is Cir.1989) (recognizing too they are not invocations); specific prayer Grahаm prohibited to school plicable The court School, par- language says to “the some Central because (same); recognize (D.Iowa) but see Stein we do ents and students: Schools, beliefs, supe- F.2d our beliefs are your religious Plainwell Cir.1987) applying Stein, (apparently F.2d at yours.” rior to context of school are prayers in the that some exception judges imply But the Marsh finding enough still offend denominationally neutral invocations/benedictions violation). accept- prayer would be Clause Such no one. Stein, under able, view under the court’s this between of differences A number This, suggest, I Clause. the Establishment my view reinforce Marsh case and teаchings of the contrary the be would prayer to school inapplicable is Vitale, 370 Engel v. Court. aat students are Middle school cases. L.Ed.2d development in their stage very different may denom- prayer the be (“[T]he fact that legis- prayers than state relationship to can serve inationally neutral ... [not] are able to debate legislators lators. Estab- from limitations free it where have ‍​‌​​‌‌​​‌‌‌​​​​‌​‌‌​​​‌​​​​​​​‌​‌‌‌​‌‌​​​​​‌‌‌‌​‍whether on vote Clause”). would prayer Such lishment prayers im- students have prayers; difficult, impossi- if extremely not also be argue Appellants upon them. posed Marsh, ble, compose. See once-a-year occur- is because (Brennan, 3350-51 103 S.Ct. at the Establish- imрlicate does not rence it with problems dissenting) (cataloguing the I daily prayers do. way ment Clause prayer). creating a non-denominational represents disagree. Because the ac- passing on Judges be should not schooling and is years the culmination prayers. specific passages students, ceptability to the final word the school’s neither a state nor the govern- federal (“The up content of the is not ment can set a church. Neither can pass judges.”). ruling of concern to laws which aid religion, one aid all religions, prefer parents invites and students to re- one Stein to anoth- er. prayers if view to determine the content is

sufficiently neutral. That creates more Everson, 67 S.Ct. at 511. than rather less friction en- By having benedictions and invocations at couraging individuals to debate the content graduations, the Providence School prayers. District has violated the Establishment Clause. I concur in affirming opinion THE USE OF DEITY. district court. The district court made some statements CAMPBELL, Judge Circuit (dissenting). opinion course of its that were in the Judge states, As Torruella Judge Chief same vein as the Stein court’s discussion Boyle’s opinion for the district court in- prayer. Relying of non-denominational on deed pellucid,” “sound and in that it ex- the fact that the invocation and benediction presses well what Supreme be the deity, referred to a the court that if stated Court’s ultimate view this cоnfused area “God” “had been left out of the benediction of the I say “may.” law. As indicated ... the Establishment Clause be below, prefer I another view but am aware implicated.” Lee, Weisman position may district court’s (D.R.I.1990). This, in my opinion, is in keeping Supreme more Court con- interpretation too literal and narrow an sensus. acceptable and of what is under the Judge am less amenable to Bownes’ prohibits Constitution. The Constitution reasoning. His seems to me an extreme merely schools and not position, especially his view that a benedic- (liter deity. references to a An invocation tion would offend the First Amendment ally invoking the name of God over the dеity even if a were not even mentioned. proceedings) (blessing and a benediction apparently Bownes would strike proceedings) very terms suggested down the benediction by the dis- religious. A benediction or (which trict court uses the same as words invocation offends the First Amendment challenged prayer, all but omits refer- even if the words of invocation or bene God). ences to That in part, version reads manipulated diction are somehow so that a legacy as follows: “For the of America deity See, e.g., is not mentioned. Karen B. diversity rights where is celebrated and the Treen, (5th Cir.1981), 653 F.2d protected minorities are we are thank- aff'd., 455 U.S. ful_ May aspirations for our coun- (1982) (“[Pjrayer perhaps try young people, and for these who are quintessential religious practice future, hope richly for the be fulfilled.” many of the world’s faiths ... an [it is] Lee, See Weisman entreaty, supplication, praise, address of or It why n. 10. is difficult to see this would thanksgiving directed toward some sacred violate the The Establishment Clause. spirit, being object.”). or divine Al or prohibits making First Amendment of a though I probably impossible think it is to “respecting law an establishment of reli- pray invoking deity directly without or gion, prohibiting there- or the free exercise indirectly,14 deity the direct reference to a ex- of.” What is there so about should not the constitutional touchstone diversity pressing thanks for and for analysis. for our protection minority rights? Is Thanks- of sum, long ago, as Justice Black stated giving a forbidden rite? Must courts out- religion’ public reading

the ‘establishment of clause of law the Walt Whitman Amendment this: on a Urn”? the First means least Keats’s “Ode Grecian acknowledging purposes divine 14. Even the "Guidelines for Civic Occasions” ful to the blessing.” recognize public prayer presence seeking that must "remain faith- remains, colleague question Yet is it neces my views These extreme preserve separation of church and sary that inhere in ban problems suggest —to prevent men and invoca including those that state —to benedictions ning invocations — doing deprive peo generous, inclusive sort? By so we tions of deity. tion a message that seems remarks at There is a tradition such ple uplifting of an like passage going for a rite of to the Found public functions back especially suitable Chambers, to present those wish ers. See Marsh where graduation, (1983) (sus First Amend deeply felt thanks. Our give normally protects legisla jurisprudence prayer opening of state taining suppressing it. It session). speech rather than It seems unreasonable ture’s Rabbi Gutter- to outlaw say that Marsh applies only legisla seems anomalous to state tolerant, suppli benign, nonsectarian man’s expect it to cover tive sessions. One would entirely appropriate message so so, cation —a meetings. If it extend other surely inoffensive to setting, and in that ceremony like this. graduation to a present.* Schools, virtually all of those v. Plainwell Stein (6th Cir.1987) (upholding F.2d 1406 people what are the If to ask one were public school prayers at a nonsectarian time, they hardly problems of our Judge Boyle, none graduation). Chief parents and their respond youth that our Stein rejected the theless over-exposure to corrupted by being are only felt that Marsh analogy. He not this character. The aspirations of noble session, he legislative strictly limited to a year old complaints are that common at a also believed that crack; instead of selling children are analogous prohibit ceremony was more watching homework, vi- doing students are legisla than to at a ed school TV; ideals men- the tolerant olent feared church- session. He further tive being rejected in are tioned the rabbi entanglement if courts must deter state mind and habits of of destructive favor mine what are nonsectarian ask, might good, one So what character. enough pass muster. accomplished by preventing an invocation like this? I am troubled most Chief Still, it reason- Boyle’s point. last seems course, answer, is that we are separatе out sectarian from ably simple to separation preserve the also concerned to suspect utterances. nonsectarian fundamental tenet church and state —a persuasions Americans of all Constitution, most of which the benefits of our —includ- increasing numbers who adhere to ing the need look at undisputed. One religions systems or ethical outside Ju- Lebanon, Iran, Ireland to see and Northern appro- it is framework —find seeks to avoid. deo-Christian what evils this tenet * reads, as follows: The Rabbi’s benediction reads in its en- Rabbi Gutterman’s invocation God, having grateful tirety, to You for as follows: O we are learning capacity for endowed us with the Freе, Hope of the Brave: God of the joyous com- we have celebrated on this which diversity legacy of America where For the rights mencement. of minorities are celebrated and the protected, May young seeing Happy thank You. these thanks for we families grow up enrich it. and women important men milestone. children achieve America, liberty we thank You. For the blessings upon the teachers Send Your guard graduates grow up May it. these new helped prepare them. who administrators process political of America in For the strength guid- graduates now need may participate, for its citizens which all its Help future. them to understand for the аnce justice system can seek we where all court complete with academic we are not May morn- those we honor this thank You. knowledge We must each strive to alone. ing always it in trust. turn to require all: To do what You of us fulfill destiny thank You. of America we For humbly. mercy, justly, to love to walk graduates Bishop May of Nathan Middle You, Lord, keeping give for us We thanks to they help share it. so live that School alive, sustaining allowing us to reach us and country aspirations May for our and for special, happy AMEN. occasion. hope young people, for the who are our these future, richly fulfilled. AMEN. be meaningful public speakers for priate and deity exрression not as an

to invoke the McCOWAN, Horace D. Jr. and Sarah an ex- sectarian belief but as particular McCowan, Plaintiffs-Appellees, E. and of the pression of transcendent values from much mystery and idealism so absent SEARS, CO., modern culture. AND ROEBUCK Inc., Reynolds, Dean Witter provide a I think that and Stein Defendants-Appellants. allowing invoca- basis for a rule

reasonable public, ceremonial on tions benedictions 918, 1197, Nos. Dockets occasions, have a well- provided authorities 89-9089, 90-7135. ensuring, on a rotat- program defined for Appeals, United Court of basis, States representative of a ing persons Second Circuit. range systems ethical wide beliefs and The rule give the invocation. are invited Argued 1990. Feb. repre- provision only make not should religions May Decided of the Judeo-Christian sentatives invocation, representa- but for July Amended religions nonreligious tives of other do so. In some philosophies ethical represent do not

years, lay persons who religion philosophy might

any organized give nonreligious invocation. asked to

be course, exists, of that a possibility occasionally might be

particular audience particular

exposed to a redolent of a tradition, year the next a dif- but given perhaps

ferent invocation would brief, I think the ‍​‌​​‌‌​​‌‌‌​​​​‌​‌‌​​​‌​​​​​​​‌​‌‌‌​‌‌​​​​​‌‌‌‌​‍First by agnostic. richly more and sat-

Amendment values are than

isfactorily served inclusiveness altogether people most

barring preserved.

wish to have sensitivity of appears, from the

It both prayer and the nonsectarian

the delivered up by the Assistant Su-

guidelines drawn the Providence

perintendent, distance to ensure went some

Committee included and that faiths were

that different be, It nonsectarian.

prayers were done,

however, needs to be that even more state does not that the

to ensure particular

identify itself with a so, If I would religion generally. to broaden

simply require the Committee and, suggested, other- as

its rules above

wise, permit invocations to continue high of diverse character

benedictions graduations.

school and middle school

Case Details

Case Name: Daniel Weisman, Etc. v. Robert E. Lee

Court Name: Court of Appeals for the First Circuit

Date Published: Jul 23, 1990

Citation: 908 F.2d 1090

Docket Number: 90-1151

Court Abbreviation: 1st Cir.