Weisman v. Lee

• Decision Date: 10 May 1990
• Docket Number: No. 90-1151,90-1151
• Citation: 908 F.2d 1090
• Parties: , 61 Ed. Law Rep. 1197 Daniel WEISMAN, etc., Plaintiff, Appellee, v. Robert E. LEE, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1090

908 F.2d 1090

15 USLW 2095, 61 Ed. Law Rep. 1197

Daniel WEISMAN, etc., Plaintiff, Appellee, v. Robert E. LEE, et al., Defendants, Appellants.

No. 90-1151.

United States Court of Appeals First Circuit.

Heard May 10, 1990.

Decided July 23, 1990.

Joseph A. Rotella, Providence, R.I., for defendants, appellants.

Sandra A. Blanding, Warwick, R.I., for plaintiff, appellee.

Before CAMPBELL and TORRUELLA, Circuit Judges, and BOWNES, Senior Circuit Judge.

TORRUELLA, Circuit Judge.

This is an appeal from the United States District Court for the District of Rhode Island. The issue presented for review is whether a benediction invoking a deity delivered by a member of the clergy at an annual public school graduation violates the Establishment Clause of the First Amendment of the Constitution as construed by the Supreme Court under the second prong of the Lemon test. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971). The district court held that it did. 728 F.Supp. 68 (D.R.I.1990).

We are in agreement with the sound and pellucid opinion of the district court and see no reason to elaborate further.

Affirmed.

BOWNES, Senior Circuit Judge (concurring).

Although the district court wrote a very good opinion, which I join in affirming, I am compelled to make some additional comments of my own because of the significance of this case and the strong emotions that it and other Establishment Clause cases generate. ¹

Over three hundred and fifty years ago, Roger Williams was banished from the Massachusetts Bay Colony for, among other "heresies," arguing that the civil government should be completely separate from religion. ² He travelled south and founded what became the state of Rhode Island, which was the first colony to require the separation of church and state. ³ Since that time the people of Rhode Island have been sporadically involved in probing the permissible intersections between religion and government. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (deciding Robinson v. DiCenso ). Once again this volatile and troublesome issue is before us.

We are asked to determine whether the Establishment Clause prohibits public prayer at a public middle school ⁴ graduation ceremony. Broadly, this requires us to examine the text of the Constitution and interpret its meaning based on the various tools of constitutional analysis. In its narrowest aspect, we must examine Supreme Court Establishment Clause precedent to determine whether a prayer at a middle school graduation ceremony is similar enough to prayer in the classroom to be controlled by the Court's cases prohibiting school prayer. Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (daily moment of silence expressly for prayer); Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (posting of ten commandments in school rooms); Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (daily Bible reading); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (daily prayer). Appellants claim that a graduation benediction is more like the legislative prayer approved in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), and therefore the school prayer cases are not controlling.

1. THE TEXT OF THE CONSTITUTION.

I begin my discussion with an examination of the text of the Constitution. Unlike earlier political documents, such as the Declaration of Independence, ⁵ the Constitution is completely secular, neither invoking nor referring to "God" or any deity. ⁶ The First Amendment prohibits "laws respecting the establishment of religion." U.S. Const. amend. I. ⁷

The scope of that prohibition has proven extremely difficult to delineate and implement in contemporary society. The words of the Amendment give us some indication of its meaning. The use of the word "respecting" indicates that a broader sweep should be given to "establishment," thus prohibiting many actions that could lead to the establishment of religion. County of Allegheny v. ACLU, --- U.S. ----, 109 S.Ct. 3086, 3130, 106 L.Ed.2d 472 (1989) (Stevens, J., concurring in part, dissenting in part) (" 'Respecting' means concerning or with reference to. But it also means with respect--that is 'reverence,' 'goodwill,'.... Taking into account this richer meaning, the Establishment Clause, in banning laws that concern religion, especially prohibits those that pay homage to religion."); see also Lemon, 403 U.S. at 612, 91 S.Ct. at 2111; Engel, 370 U.S. at 436, 82 S.Ct. at 1269. In addition, the use of "religion" rather than "church" implies a prohibition against more than merely an established national church. See, e.g., Everson, 330 U.S. at 31, 67 S.Ct. at 519 ("Madison could not have confused 'church' and 'religion' or 'an established church' and an establishment of religion.' "). Beyond these preliminary inquiries, the "plain meaning" of the text is of little help in determining results in this case, so we must turn to the interpretation and practice that has evolved throughout the past two hundred years.

In trying to create meaning from the Establishment Clause, courts and commentators have constructed various historical arguments. But historians have decidedly mixed views about what "establishment" meant to the framers. Judges and historians have been unable to agree about what ideas informed the writing of the Constitution, ⁸ what exactly occurred in the debates surrounding ratification (the specific intent of the framers), ⁹ or what impact the "religious character" of various post-ratification practices should have on the meaning we give to the Constitution. ¹⁰

The Court has spent considerable time considering and debating the history of the religion clauses, and each time the results have been inconclusive. Compare Wallace, 472 U.S. at 79-84, 105 S.Ct. at 2501-04 (O'Connor, J., concurring) ("The primary issue raised by Justice Rehnquist's dissent is whether the historical fact that our Presidents have long called for public prayers of thanks should be dispositive on the constitutionality of prayers in the public schools. I think not.") with Wallace 472 U.S. at 91-114, 105 S.Ct. at 2507-19 (Rehnquist, J., dissenting); compare Marsh, 463 U.S. at 786-92, 103 S.Ct. at 3333-36 with Marsh, 463 U.S. at 813-17, 103 S.Ct. at 3347-49 (Brennan, J., dissenting) (discussing the extent to which the practices of the First Congress reveal the intent behind and support interpretations of the Constitution); compare Everson, 330 U.S. at 8-16, 507-12 with Everson, 330 U.S. at 28-43, 67 S.Ct. at 517-25 (Rutledge, J., dissenting); see also Engel, 370 U.S. at 425-30, 82 S.Ct. at 1264-67. See generally Abington, 374 U.S. at 232-65, 83 S.Ct. at 1576-94 (Brennan, J., concurring) (scholarly discussion of the role of the history in interpreting the Establishment Clause). It is useless to rehash this continuing debate. The ground has been trodden so much that it is barren of meaning and persuasive power. The "historical record" is inconclusive on the various cross-currents in the minds of the framers. Because of the tangled and often conflicting historical record, it is unlikely that, as an empirical matter, we can ever know the original intention of the authors of the Constitution. ¹¹ Even if we could reconstruct the framers' intent, that would not necessarily be determinative in this case, given our two hundred years of experience with the Constitution and changing circumstances. See, e.g., County of Allegheny, 109 S.Ct. at 3099 ("Perhaps in the early days of the republic [the prohibitions of the Establishment Clause] were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism" (quotation and citation omitted)). See generally Abington, 374 U.S. at 232-65, 83 S.Ct. at 1576-94 (Brennan, J., concurring); T. Jefferson, Autobiography reprinted in The Founders' Constitution 85 ("The bill for establishing religious freedom ... meant to [include] within the mantle of its protection, the Jew and the Gentile, the Christian and the Mahometan, the Hindoo and Infidel of every denomination."). An additional facet of the problem of framers' intent is what was the framers' intention about their intent. Scholars have argued that the original intention of the framers was that their intentions were irrelevant to interpreting the Constitution. See, e.g., H.J. Powell, The Original Understanding of Original Intention, 98 Harv.L.Rev. 885 (1985).

2. THE SCHOOL PRAYER CASES.

Although the Court may have sent confusing signals on the theoretical or historical underpinnings of the Establishment Clause, it has strictly and consistently interpreted the prohibitions of the Establishment Clause in cases involving prayer in the public schools. The Court

has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. 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 or his or her family.

Edwards v. Aguillard, 482 U.S. 578, 585, 107 S.Ct. 2573, 2578, 96 L.Ed.2d 510 (1987). The Court has consistently struck down laws or practices that allow or mandate forms of prayer in the schools, ¹² and it has never allowed a prayer at a formal school function. But see Board of Education v. Mergens, --- U.S. ----, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (allowing Christian club as voluntary extracurricular activity at public school).

The appellants argue that this case is not controlled by the...