In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court—with nary a mention that it is doing so—lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. See Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954). Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people. (Robert E. LEE, Individually and as Principal of Nathan Bishop Middle School, et al., Petitioners, 1992)
I cannot join for yet another reason: the Court’s statement that the proposed use of the school’s facilities is constitutional because (among other things) it would not signal endorsement of religion in general. Ante, at ____. What a strange notion, that a Constitution which itself gives “religion in general” preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general. The Attorney General of New York not only agrees with that strange notion, he has an explanation for it: “Religious advocacy,” he writes, “serves the community only in the eyes of its adherents and yields a benefit only to those who already believe.” Brief for Respondent Attorney General 24. That was not the view of those who adopted our Constitution, who believed that the public virtues inculcated by religion are a public good. It suffices to point out that during the summer of 1789, when it was in the process of drafting the First Amendment, Congress enacted the famous Northwest Territory Ordinance of 1789, Article III of which provides, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” 1 Stat. 52 (emphasis added). Unsurprisingly, then, indifference to “religion in general” is not what our cases, both old and recent, demand. (LAMB’S CHAPEL and John Steigerwald, Petitioners, v. CENTER MORICHES UNION FREE SCHOOL DISTRICT et al., 1993)
Bibliography
Robert E. LEE, Individually and as Principal of Nathan Bishop Middle School, et al., Petitioners, 505 U.S. 577 (Supreme Court June 24, 1992).
LAMB’S CHAPEL and John Steigerwald, Petitioners, v. CENTER MORICHES UNION FREE SCHOOL DISTRICT et al., 508 U.S. 385 (The Supreme Court June 7, 1993)
