Bennett v. Livermore Unified School Dist.

• Decision Date: 24 July 1987
• Citation: 193 Cal.App.3d 1012,238 Cal.Rptr. 819
• Parties: , 40 Ed. Law Rep. 860 Leslie Ann BENNETT and Wilbur Miller, Plaintiffs and Respondents, v. LIVERMORE UNIFIED SCHOOL DISTRICT, etc. et al., Defendants and Appellants. A029496.
• Court: California Court of Appeals Court of Appeals

Page 819

238 Cal.Rptr. 819

193 Cal.App.3d 1012, 40 Ed. Law Rep. 860

Leslie Ann BENNETT and Wilbur Miller, Plaintiffs and Respondents, v. LIVERMORE UNIFIED SCHOOL DISTRICT, etc. et al., Defendants and Appellants.

A029496.

Court of Appeal, First District, Division 1, California.

July 24, 1987.

Rehearing Denied Aug. 21, 1987.

Review Denied Oct. 22, 1987.

Margaret C. Crosby, Alan L. Schlosser, Edward M. Chen, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, for plaintiffs/respondents.

Richard J. Moore, County Counsel, William E. Rundstrom, Senior Deputy County Counsel, Dianna Thurston, Deputy County Counsel, Oakland, for defendants/appellants.

American Jewish Congress, New York, N.Y., filed amicus curiae brief for plaintiffs-respondents.

ELKINGTON, Associate Justice.

Leslie Ann Bennett, a high school senior at Granada High School in the Livermore Unified School District, and Wilbur Miller, a Livermore taxpayer, obtained judgment from the superior court declaring unconstitutional, under both state and federal Constitutions, the inclusion of a religious invocation in Granada High School graduation ceremonies. The court further enjoined the School District from including an invocation in scheduled and future graduation ceremonies.

The School District Appeals.

The instant action was filed after Bennett and two of her classmates were unable to convince their high school grievance committee and the Directors of the School District to overrule the decision of the high school's graduation committee to include a religious invocation at their graduation ceremony.

The Granada graduation ceremony is a school-sponsored event, held upon school property purchased with tax funds. Attendance of the ceremony by students and faculty is essentially voluntary, ¹ although members of the administration are required to attend. The School District, which establishes the guidelines for the ceremony does not require that an invocation be given. An invocation, however, is traditional and has been included in the graduation ceremony of every school in the district since at least 1973. The invocation is delivered either by a visiting clergyman or by a student. The district provides no specific guidelines for the invocation's content, although when a student is selected to give the invocation, a faculty advisor is assigned to assist the student.

An invocation, however, by definition is "a form of prayer invoking God's presence." (Random House Dictionary of the English Language (New York: Random House 1967). Indeed, it was stipulated that Granada High School's invocation traditionally referred to an Almighty God. But the citizens of this country, and perhaps of this state in particular, are a people of highly diverse cultural, ethical and religious backgrounds. ² And we note that, as the court found in Torcaso v. Watkins (1961) 367 U.S. 488, 495, fn. 11, 81 S.Ct. 1680, 1684, fn. 11, 6 L.Ed.2d 982, "Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism, and others." Any religious invocation, and certainly any invocation including a reference to God, therefore almost necessarily will not comport with the beliefs of a number of those persons present, and may in fact be offensive to some. Indeed, the scheduled invocation patently was offensive to Bennett, and to the minority of students who joined her in protesting its inclusion.

This appears to be a case of first impression in California, although other state courts have decided similar actions, reaching differing conclusions.

Although we agree with the School District that the once yearly, brief religious exercise at issue here is not a particularly egregious intrusion of the State into religious activities, the applicable law compels the conclusion that it is not acceptable. We therefore align ourselves with those cases holding impermissible the inclusion of an invocation at a public school graduation ceremony, finding that it violates both the United States and the California Constitutions.

A graduation ceremony, as an administrative act, must comport with state and federal constitutional standards. (Johnson v. Huntington Beach Union High Sch. Dist. (1977) 68 Cal.App.3d 1, 11, 137 Cal.Rptr. 43.)

The First Amendment of the United States Constitution decrees, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

The Amendment is made applicable to the states through the Fourteenth Amendment (Abington School Dist. v. Schempp (1963) 374 U.S. 203, 215, 83 S.Ct. 1560, 1567, 10 L.Ed.2d 844).

California's Constitution, however, in provisions not dependent upon the federal Constitution (Cal. Const., art. I, §§ 4, 24,) expresses the same sentiments: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed.... The Legislature shall make no law respecting an establishment of religion." (Cal. Const., art. 1, § 4.)

But California's constitutional provisions are more comprehensive than those of the federal Constitution (Fox v. City of Los Angeles (1978) 22 Cal.3d 792, 796, 150 Cal.Rptr. 867, 587 P.2d 663), and particularly so in the area of involvement of religion in schools. Thus, Article XVI, section 5, in providing that "Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose to help or to support or sustain any school, college, university ...," "forbids more than the appropriation or payment of public funds to support sectarian institutions. It bans any official involvement, whatever its form, which has the direct, immediate, and substantial effect of promoting religious purposes." (California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 605, fn. 12, 116 Cal.Rptr. 361, 526 P.2d 513.) And Article IX, section 8, provides, "No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State."

"With certain exceptions not here relevant, California courts alone determine the rights guaranteed by the California Constitution so long as those rights extend equal or greater protection to those guaranteed by the federal Constitution under totally similar provisions of the Bill of Rights. (Mandel v. Hodges (1976) 54 Cal.App.3d 596, 616 [127 Cal.Rptr. 244, 90 A.L.R.3d 728].)" (Feminist Women's Health Center, Inc. v. Philibosian (1984) 157 Cal.App.3d 1076, 1086, 203 Cal.Rptr. 918.) However, there are few cases which discuss California's constitutional prohibition against the interaction of State and Church. Therefore, although "we examine the constitutionality of the proposed action on independent state grounds ... we also consult principles of federal cases as they seem compelling guides to uncharted state grounds." (Id., at 1086, 203 Cal.Rptr. 918.)

The United States Supreme Court has long interpreted the First Amendment as commanding an absolute separation of Church and State. We quote from but a few of many cases.

"Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups 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 v. Board of Education (1947) 330 U.S. 1, 16, 67 S.Ct. 504, 512, 91 L.Ed. 711.)

" 'There is no answer to the proposition ... that the effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business and thereby be supported in whole or in part at taxpayers' expense.... This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it was set forth in absolute terms, and its strength is its rigidity.' ... 'The [First] Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It 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.' " (Abington School Dist. v. Schempp, supra, 374 U.S. 203, 216-217, 83 S.Ct. 1560, 1568.)

" 'We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.' " (Wallace v. Jaffree (1985) 472 U.S. 38, 105 S.Ct. 2479, 2488, fn. 37, 86 L.Ed.2d 29.)

And, "[t]he Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools." (Edwards v. Aguilland (1987) --- U.S. ----, ----, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510.) Thus, the Supreme Court consistently has rejected any form of prayer, however inoffensive or nonsectarian, in the public schools. (See Engel v. Vitale (1962) 370 U.S. 421, 82 S.Ct. 1261, 8...