MERRITT, Circuit Judge.
The basic question presented on appeal is: what kind of invocations and benedictions, if any, does the Establishment Clause of the First Amendment permit the public schools to conduct at their annual commencement exercises?
The facts are not in dispute and are found in the joint stipulation filed by the parties. The Plainwell Community Schools and the Portage Public Schools are public school districts organized under Michigan law and located in the western part of the state near the City of Kalamazoo. At both the Plainwell High School and Portage Central High School commencements, invocations and benedictions are regularly included in the annual commencement ceremonies. Both commencements are held at outdoor athletic facilities during the evening. Attendance at the commencement ceremonies by graduating seniors is voluntary, and receipt of a diploma is not conditioned upon attendance at the ceremony.
At the Plainwell commencement, the invocation and benediction are delivered by two students. These students are volunteers chosen from a group of honor students. The content of the invocation and benediction is determined by the students.
At the Portage Central commencement, the content of the ceremony is organized and developed by the graduating seniors. For at least fifteen years they have elected to include an invocation and benediction in the commencement ceremony. The invocation and benediction have been given by local ministers and clergy of various Christian denominations chosen by the senior class representatives.
In its opinion of May 22, 1985, denying plaintiffs' motion for a preliminary injunction, the District Court applied the three-prong test of Lemon v. Kurtzman, 403 U.S. 602,
The school boards argue that the limitations on school prayer developed for the classroom under the line of cases beginning with Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (officially sponsored school prayer invalid), simply do not apply because graduation exercises are only annual occasions of a festive, celebratory nature. They reinforce their argument by pointing out that attendance and participation by the students are not required and that the setting — an auditorium or a football field with parents and friends in attendance — is different from the classroom.
The plaintiffs, citing this same line of Supreme Court school prayer decisions
From the beginning of the colonial period to the present, American churches have taken their various religious differences seriously, and under the Free Exercise and Establishment clauses taken together, we have generally accepted and settled on an accommodation: The concept of the equal liberty of conscience is our guiding principle. In our national and community life, we can never be sure whether our particular religious, sectarian and moral convictions will be in the majority or the minority. So as a diverse people we have rejected the notion of a confessional state that supports religion in favor of a neutral state designed to foster the most extensive liberty of conscience compatible with a similar or equal liberty for others. To those who act or argue against this principle of equal liberty of conscience on grounds that their duty is to use the state in support of their particular beliefs, we answer that we cannot expect others to accept an inferior liberty. To those who say that the principle of equal liberty of conscience has the effect of rejecting the absolute nature of their religious beliefs, we reply that if any principle can be agreed to, it can only be that of an equal liberty of conscience for all.
Liberty of conscience is limited by the common interest in public order and security. The Supreme Court recently concluded in Marsh v. Chambers, 463 U.S. 783, 786, 103 S.Ct. 3330, 3333, 77 L.Ed.2d 1019 (1983), over the dissent of three members, that individuals may be required to make some accommodation with "the history and tradition of this country." It is at this
In Marsh v. Chambers, the Supreme Court, looking primarily to the intent of the framers of the Constitution and historical practice since 1789, id. at 786-792, 103 S.Ct. at 3333-36, upheld "nonsectarian," id. at 793 n. 14, 103 S.Ct. at 3337 n. 14 "nonproselytizing" legislative invocations that do not "symbolically place the government's official seal of approval on one religious view," id. at 792, 103 S.Ct. at 3336 (citation omitted). The Court emphasized that "civil" or secularized invocations are used across the country to open legislative, judicial, and administrative sessions of state legislatures, city councils, courts and other public bodies, as well as by private institutions of all kinds. So long as the invocation or benediction on these public occasions does not go beyond "the American civil religion,"
The annual graduation exercises here are analogous to the legislative and judicial sessions referred to in Marsh and should be governed by the same principles. The invocation and benediction at a graduation ceremony serves the "solemnizing" function described by Justice O'Connor in her concurrence in Lynch v. Donnelly:
465 U.S. 668, 692-93, 104 S.Ct. 1355, 1369, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring) (citation omitted).
Like federal, state and local legislative and court sessions throughout the country, there are thousands of public graduation exercises annually. They are frequently memorable occasions for students, parents and friends. To prohibit entirely the tradition of invocations at graduation exercises while sanctioning the tradition of invocations for judges, legislators and public officials does not appear to be a consistent application of the principle of equal liberty of conscience.
Furthermore, unlike classroom prayer, ceremonial invocations and benedictions present less opportunity for religious indoctrination or peer pressure. The potential for coercion in the prayer opportunity was one of the distinctions employed by the Court in Marsh to separate legislative prayer from classroom prayer. 463 U.S. at 792, 103 Ct. at 3336 (citing Tilton v. Richardson, 403 U.S. 672, 686, 91 S.Ct. 2091, 2099, 29 L.Ed.2d 790 (1971), and Abington School Dist. v. Schempp, 374 U.S. 203, 290, 83 S.Ct. 1560, 1607, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring)). Although children are obviously attending the ceremony, the public nature of the proceeding and the usual presence of parents act as a buffer against religious coercion. In addition, the graduation context does not implicate the special nature of the teacher-student relationship — a relationship that focuses on the transmission of knowledge and values by an authority figure. Therefore, the prayer in question here should be analyzed under the Marsh standards for ceremonial prayer
At the same time, the invocations and benedictions delivered at these occasions should not be framed in language that is unacceptable under Marsh, language that says to some parents and students: we do not recognize your religious beliefs, our beliefs are superior to yours. The invocations and benedictions delivered here do not pass the Marsh test. They are framed and phrased so that they "symbolically place the government's seal of approval on one religious view" — the Christian view. They employ the language of Christian theology and prayer. Some expressly invoke the name of Jesus as the Savior. They are not the "civil" invocations or benedictions used in public legislative and judicial sessions as described in Marsh.
Accordingly, the judgment of the District Court is reversed and the case is remanded to the District Court for further proceedings and the granting of equitable relief under the test for neutrality established in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983).
MILBURN, Circuit Judge, concurring.
I concur in Judge Merritt's opinion. However, I would point out that we can take judicial notice that invocations and benedictions at public school commencements have been a traditional practice since the beginning of the public schools in this country. Further, I would stress that in order for these ceremonial prayers to meet constitutional muster, the prayers offered must be nonsectarian and nondenominational. Moreover, the prayers offered must be similarly secular to those invocations and benedictions given at public governmental-sponsored occasions as in state legislatures, in the courts, and in Congress as approved by Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983).
In my view, ceremonial school commencement prayers must not only meet these criteria, but must also meet the test in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); i.e., they advance a secular rather than a religious purpose of formally opening and closing the commencement ceremony and festivities; they do not have the primary effect of advancing religion; and they do not foster excessive entanglement of religion. However, most, if not all, of the challenged prayers, and especially that which is set out in footnote 2 of Judge Merritt's opinion, do not meet the criteria of the Lemon test.
If a prayer is nonsectarian and nondenominational, it does not cross that boundary of putting the state's imprint on religion. Only if a prayer violates those principles set out above does it cross that boundary. Further, in my view, our decision in this case should be limited to ceremonial public school commencement exercises.
WELLFORD, Circuit Judge, dissenting.
I agree with much of Judge Merritt's opinion and of Judge Milburn's concurring opinion. I find, however, that I must dissent from their conclusion. I first set out pertinent facts.
Dahlinger filed suit as a parent of a soon to be graduating senior in the class of 1985 at Portage High School, and he planned to attend the commencement ceremony. Stein filed suit as a parent of two students attending Plainwell High School, one of whom was planning to graduate, and Stein also planned to attend the forthcoming 1985 commencement service. Both plaintiffs alleged that school authorities established a policy at this annual commencement program to permit "the saying of prayers in the form of an invocation and benediction." The complaint averred that students said the prayers at the respective 1984 commencements, and that the purpose was to "invoke the guidance, assistance or blessing of the Deity," and that this practice constituted an unconstitutional "establishment of religion." The 1984 Plainwell program indicated that the class treasurer was to give an "invocation" following a processional, and that another of the graduating honor students was to give a "benediction"
The case came first before the district court on plaintiffs' motion for a preliminary injunction, which extraordinary relief the district court denied after a hearing. Judge Gibson concluded that the challenged practices "do not violate the establishment clause." Both defendants denied that it was "official policy" to have prayers at commencement or to accomplish the purposes averred by plaintiffs.
The later stipulation in this case set out that "some people in attendance at the graduation ceremonies will find the prayers at Invocation and Benediction to have a religious effect while others will find the prayers to be merely a formal way of opening and closing the graduation and, therefore, are only ceremonial in effect." Plainwell students determined the content of the invocation and benediction, and school authorities did not review the content; the only assistance was "in improving delivery." The Plainwell 1985 invocation and benediction began with the words, "Heavenly Father." The invocation also quoted words attributed to a philosopher, Kahlil Gibran,
Neither the school authorities nor graduating seniors at Portage High School participated in or had prior knowledge of the content of the invocation and benediction at the 1985 commencement service. The Reverend Allen concluded his invocation at the Portage commencement by saying "we ask Your blessing upon us now and always through Jesus Christ our Lord," and he used the word "Lord" in the benediction. Again, after a hearing, the district court held that neither "ceremony" in question violated the establishment clause of the Constitution.
I find myself in disagreement with my fellow judges in defining the question in this case. The majority has framed the question as "what kind of invocations and benedictions, if any, does the Establishment Clause ... permit ...?" This question and the majority's analysis emphasize the content of the invocations and benedictions at issue. The complaint, however, makes no reference to the "prayers" as being sectarian or denominational, which the majority has deemed most important. Rather, the complaint objects to any reference to the "Deity" for "guidance, assistance or blessing," or to "promote respect for and belief in the existence of the Deity." Clearly, plaintiffs question any reference to a Deity, not to any particular sectarian view, be it Christian, Jewish, Mohammedan, or otherwise. The Supreme Court, moreover, has asserted:
Marsh v. Chambers, 463 U.S. 783, 794-95, 103 S.Ct. 3330, 3337-38, 77 L.Ed.2d 1019 (1983). Focus on content, therefore, is not in my view appropriate. Accordingly, the question in this case is not what kind of invocation or benediction, if any, does the Constitution permit; rather it is whether any invocation or benediction at a public high school commencement in the form of a prayer, or reference to the Deity, the content of which prayer is not officially prescribed, is constitutionally permissible. I would affirm the district court's finding of no establishment clause violation under the circumstances of these two public high school commencement ceremonies.
In McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed.2d 649 (1948), the Supreme Court considered prayer in public schools and whether a challenged practice violated the first amendment's proscription against establishment of a religion. In McCollum school officials regularly permitted religious leaders to use public school classrooms from fourth grade through ninth grade during regular classroom times for instruction on a voluntary basis. The Court held this to be violative of the establishment clause.
Within a few years the Supreme Court considered another establishment clause challenge involving religious instruction or observance in connection with public school students. See Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952). In Zorach public school authorities arranged "released time" programs to allow students on a voluntary basis to go to religious centers for religious studies or devotions during regular school hours. Justice Douglas wrote for the Court that this practice met constitutional muster, stating:
343 U.S. at 312-14, 72 S.Ct. at 683-84.
Two distinctions between McCollum and Zorach are instructive for the purposes of
In Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), state law directed that a teacher was to lead an officially sanctioned prayer daily in the public schools. The Regents' official prayer and this practice were prohibited by the Court as violative of first amendment strictures. Noteworthy factors in the Engel decision were the classroom setting, young children, daily repetition, official sanction, and leading by the teacher. Also significant is the defendant officials' concession that the practice was a religious activity developed as part of their "Statement on Moral and Spiritual Training in the Schools." Id. at 423, 82 S.Ct. at 1263.
Although the Court struck down this daily imposed classroom activity, it is well to note what the Court said the Engel decision did not do:
370 U.S. at 435 n. 21, 82 S.Ct. at 1269 n. 21 (emphasis added).
In keeping with Engel the Court struck down in Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), as violative of the first amendment's establishment clause, a Kentucky statute's requirement of posting a copy of the Ten Commandments from the Bible on the wall of each public classroom. The Court applied in Stone the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971),
The Supreme Court recently considered another establishment clause challenge to a state requirement imposed on a daily basis in a classroom setting in Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). A one minute period of silence was mandated in all public schools in Alabama "for meditation or voluntary prayer." Id. at 40, 105 S.Ct. at 2481. The parents of children in kindergarten to third grade challenged the act, which was held to violate the first amendment in light of legislative history and a prime sponsor's testimony that the law was "an effort to return voluntary prayer to our public schools." Id. at 43, 105 S.Ct. at 2483. Again, the Court began its analysis of the constitutional issue by considering the Lemon criteria, acknowledging that "a statute that is motivated in part by a religious purpose may satisfy the first criterion." Id. at 56, 105 S.Ct. at 2490 (citing Abington School Dist. v. Schempp). The Court emphasized that the Alabama statute was "wholly religious" in character and had "no secular purpose." See id. at 56, 58, 105 S.Ct. at 2490 (emphasis in original).
Most recently, in Grand Rapids School District v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985) (another five to four split in the Court), the Court found a "shared time" program involving public school students to be violative of the establishment clause, because those who furnished the classrooms were "pervasively sectarian" religious schools. 473 U.S. at 385, 105 S.Ct. at 3223. The Court, in so holding, emphasized a fear of "inculcating particular religious terms or beliefs," and felt that the program might "provide a crucial symbolic link between government and religion ... at least in eyes of impressionable youngsters." Id. (emphasis added). In addition, the Court felt in Ball that the program might have the effect of providing a state subsidy to religion. "State-sponsored indoctrination" was the fear and basis of Ball, 473 U.S. at 385, 105 S.Ct. at 3224. See also Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975).
An examination of these Supreme Court cases involving prayer, meditation, or posting of religious expression in the public schoolrooms indicates that the Court has been concerned throughout, as in McCollum, with (1) regularly scheduled or persistent religious expressions, (2) in a classroom setting, (3) officially sponsored or sanctioned content initiated by school authorities, which are (4) directed to students, primarily those of formative years. When a majority of these factors have been
First, the invocations and benedictions are not recited daily or regularly throughout the school year; they occur only once a year. Second, the setting is not a classroom or academic facility or during school hours; the ceremonies take place in athletic facilities after the school year has ended. Third, school authorities place no official sanction on the content of the invocations and benedictions. At neither school do the school authorities determine or even review the content of the remarks or participate in delivering them. Fourth, the audience is comprised largely of adults and graduating seniors, who are much less impressionable than children in their formative years. In sum, the facts of this case demonstrate the absence of any pedagogical or proselytizing purpose or effect, and a negligible role of school authorities.
I conclude that none of the school cases mentioned would direct in the instant situations a conclusion that once a year, outside the classroom, uncontrolled as to content, recitations of an invocation and/or benediction with the mention of God, Lord or Deity are unconstitutional. Here there is, at most, a kind of acknowledgment of religion in a brief part of an annual commencement ceremony, which takes place outside of any classroom setting, and is not directed towards influencing young children at a formative period.
A focus on cases outside of the context of the public school classroom leads to the same conclusion. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), was described in Ball as establishing a three-part test that "guides `[t]he general nature of our inquiry in this area.'" See 473 U.S. at 382, 105 S.Ct. at 3222. These tests "serve only as guidelines" and have no "precise limits." Id. at 383, 105 S.Ct. at 3222; see also Meek v. Pittenger, 421 U.S. at 359, 95 S.Ct. at 1760. The first part of the Lemon test questions whether the "statute [has] a secular legislative purpose." 403 U.S. at 612, 91 S.Ct. at 2111. There is no statute involved in this case; at issue is a practice of the school board acquiescing in the commencement program's having both an invocation and a benediction. The joint stipulation recognizes that some might view the invocation and/or benediction as having a religious effect while others would view it as entirely ceremonial. To the extent that the invocation and benediction are essentially ceremonial, they must pass muster under the first part of Lemon. A practice that is motivated only "in part by a religious purpose may satisfy the first criterion." Wallace v. Jaffree, 472 U.S. at 56, 105 S.Ct. at 2490. As the parties in this case have stipulated, saying a nonprescribed invocation or a benediction at a commencement clearly has both a secular and a nonsecular purpose. The words, "invocation" and "benediction" have dictionary definitions that describe the terms in both a secular and a nonsecular way.
The second prong of the Lemon test concerns whether the practice has the primary effect of advancing religion. 403 U.S. at 612, 91 St.Ct. at 2111. The subordinate nature of the invocation and benediction, which last approximately two minutes in commencement ceremonies that take place only once a year, coupled with student control and the absence of faculty or board sanctioned content indicates that the primary effect does not advance religion. A fair comparison with the activity in question is the giving of a prayer by a Presbyterian chaplain, chosen by a legislative
Finally, the circumstances present would seem to fit within the context of Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), in which the display of a creche, owned by the City of Pawtucket, Rhode Island, and erected by the City in the shopping area, was held not to violate the establishment clause. The Court analyzed the activity in light of Lemon and determined that the display had a secular purpose, coupled with an undeniable religious import. As discussed above, a secular purpose suffices even if a religious purpose also exists. See, e.g., Wallace v. Jaffree, 472 U.S. at 56, 105 S.Ct. at 2490; Lynch, 465 U.S. at 680-81, 104 S.Ct. at 1362-63. The principal purpose of the creche, moreover, was not deemed to be advancement of the Christian faith, and finally, the Court found no excessive entanglement of government with religion. Lynch, 465 U.S. at 683-85, 104 S.Ct. at 1364-65. The Lynch Court also focused on the creche scene "in the context of the Christmas season." Id. at 679, 104 S.Ct. at 1362 (emphasis added); see also American Civil Liberties Union v. City of Birmingham, 791 F.2d 1561, 1566-67 (6th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986) (distinguishing Lynch on the basis of the context of a creche scene, which stood alone rather than being surrounded by secular decorations like the creche in Lynch). Considering the
The principles set out in Lynch would seem clearly to indicate that no constitutional violation occurred in this case despite the content of the invocations and benedictions. I maintain that the content is not material because the school officials had no part in determining what was said or to be said or even who was to say the invocation and blessing at the respective school commencements. These facts demonstrate no motivation to advance religion or any particular religion. As the Supreme Court asserted in Marsh, under these circumstances, which indicate no exploitation of an opportunity to advance any one religion, "the content of the prayer is of no concern." Marsh, 463 U.S. at 794-95, 103 S.Ct. at 3337-38.
Concerning the last prong of the Lemon test, the brief recitation of an invocation and a benediction under the stipulated circumstances do not involve any excessive entanglement between church and state. State funds are not being used or diverted for religious purposes. The occasion was clearly a ceremonial one and not a classroom situation.
Finally, I note that had the speaker or leader at the time and place of the invocation read or led the audience in singing these words: "My Country `Tis of Thee" or "Our Father's God to Thee, Author of Liberty," I doubt that this court, or any other, would find this activity unconstitutional. Had the speaker read, or guided the audience in a benediction with Irving Berlin's famous words, "God Bless America," or Julia Ward Howe's opening expression in the Battle Hymn of the Republic referring to the "glory of the Lord," again I doubt any finding of constitutional offense. These words in favorite songs, used at innumerable public ceremonies, including graduation ceremonies, contain plain and repeated reference to the Deity and ask His Blessing or give thanks for His guidance and assistance. They are both a form of invocation and benediction which in content is known in advance; yet they do not violate the first amendment. The remarks used to open and close the ceremonies in this case are no more violative of the constitution than are these expressions referring to the Deity.
Appellants have attempted to distinguish such songs from the remarks used at these commencement ceremonies on the basis that the remarks were "prayers." They emphasize that prayer is inherently religious and argue that the invocations and benedictions at issue are flawed simply because they are "prayers." The Supreme Court, on the other hand, has declared that "[f]ocus[ing] exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause," and the Court has directed that such a narrow focus is erroneous; courts must consider the whole context in which the activity takes place. See Lynch, 465 U.S. at 680, 104 S.Ct. at 1362. Appellants' narrow focus on the religious nature of prayer in this context conflicts with Lynch. The Court in Marsh, moreover, upheld the use of prayer to open legislative sessions. See 463 U.S. at 795, 103 S.Ct. at 3338. Saying a prayer does not violate the establishment clause simply by virtue of being a prayer used at a public function, as appellants would suggest.
For these reasons, in addition to those well expressed by Judge Gibson, I would AFFIRM the decision of the district court.
At earlier commencement exercises at Portage Central, invocations have included a statement that one must keep Jesus Christ as one's savior.
Justice Clark, writing for the Court, stated:
Id. at 213, 83 S.Ct. at 1566.
Justice O'Connor's concurrence in Wallace also made clear that Lemon's "endorsement test does not preclude government from acknowledging religion or from taking religion into account...." Id. at 70, 105 S.Ct. at 2497 (O'Connor, J., concurring).
Now Chief Justice Rehnquist stated in dissent that "the Lemon test proscribes state action that has a sectarian purpose or effect, or causes an impermissible governmental entanglement with religion." 472 U.S. at 108, 105 S.Ct. at 2517 (Rehnquist, J., dissenting). He found no violation of first amendment values in Wallace.
That these invocations pass constitutional muster according to Marsh indicates, it seems to me, a critical flaw in the majority's anaylsis. The mention of the Deity, even in the Christian context, in the invocation and benediction at issue, are not of critical import as indicated in the constitutional practices of the Senate chaplain.