The First Amendment: Has the Supreme Court Overlooked Its Role as Guardian of Our Freedom by Failing to Distinguish Between Real Threat and Mere Shadow? - Jimmy Daniels

• Citation: Vol. 46 No. 3
• Publication year: 1995

Special Student Contribution

The First Amendment: Has the Supreme Court Overlooked its Role as Guardian of our Freedom by Failing to Distinguish Between Real Threat and Mere Shadow?by Jimmy Daniels^*

I. The Establishment Clause

"Congress shall make no law respecting an establishment of religion....."¹

This single phrase, referred to as the Establishment Clause, has created much confusion among legal scholars throughout the latter part of the Twentieth Century and particularly the past two decades. This confusion, in my opinion, can be attributed to historical ignorance, misapplication, or both.

II. The History Of Religion In America

"A page of history is worth a volume of logic."² This is particularly true in Establishment Clause cases,³ in light of the fact, as expressed by Justice Black, that "[t]he history of man is inseparable from the history of religion."⁴

A. Religious Custom

By uncovering realities, history exposes the truth and raises such questions as why, traditionally, is the history of our Country replete with religious references to a divine being?⁵ Indeed, the pervasiveness of religion in our society is evident from such examples as our national motto "In God We Trust" and our pledge of allegiance to a "nation under God."⁶ Yet, there are those who insist that any alliance between government and religion, including our Country's heritage of pledging allegiance and trust in a Supreme Being, runs counter to the Establishment Clause. If true, then why is it not a violation of the Establishment Clause, for example, to have the Declaration of Independence placed on our national walls, where it appeals to '"the Supreme Judge of the World for the Rectitude of our Intentions' avowing 'a firm Reliance on the Protection of divine Providence . . ."'?⁷ On the other hand, how could this magnificent document that marked the birth of our Country and signified the freedom of our people be considered unconstitutional? Herein lies the dilemma.

Chief Justice Burger, writing for the Court in Marsh v. Chambers,⁸ attempted to reconcile the dilemma. The Chief Justice, in upholding the practice of opening legislative sessions with an invocation, stated, "[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that [this tradition] has become part of the fabric of our society."⁹ That invoking such "Divine guidance ... in these circumstances ... is simply a tolerable acknowledgement of beliefs widely held among the people of this country."¹⁰

B. Civil Religion

History demonstrates that our Founding Fathers considered legislative prayer to be a nonproselytizing activity.¹¹ This practice, like our pledge of allegiance to a "nation under God," is said to "harmonize with the tenets of some or all religions."¹² This common integration of religion acknowledged by our Founding Fathers¹³ and adopted by the Court is referred to as civil religion.¹⁴

The doctrine of civil religion derives its power from the language of varying religions.¹⁵ This societal phenomenon has worked its way into our lives through our desire and need for unity.¹⁶ As a result of modern-day development,¹⁷ this need for unity intensified, "forcing [our society] to come up with new means of attaining and expressing social cohesiveness."¹⁸

Thus, the rejoicing of a day for Thanksgiving and the embracing of such documents as the Declaration of Independence "are not just the remnants of some pre-constitutional Christianity; they are the constituent parts of a long-term response [to modern day development and the subsequent disunification of our society]."¹⁹ Moreover, these traditions, while maintaining religious significance, are civil in nature, and do not, therefore, endorse a particular faith.²⁰ For that reason, civil religion is well established in law and firmly embraced by the people; "a religious people whose institutions presuppose a Supreme Being."²¹

III. Present-Day Establishment Clause Jurisprudence

Consider, in light of the doctrine of civil religion, the following case of Adler v. Duval County School Board.²² Ask yourself whether the Court's acknowledgement of civil religion should apply in the context of high school commencement exercises.

A Factual Background

Shortly following the closing of the 1992 school year, Vicki Reynolds, the legal liaison for the Duval County School Board, under the direction of Superintendent Larry Zenke, issued a memorandum regarding graduation prayer to all high school principals.²³ The memorandum stated, "due to the recent Supreme Court ruling in Lee v. Weisman,²⁴ there should be no prayer, benediction, or invocation at any graduation ceremonies.

After receiving a number of letters which suggested that student-initiated and student-led prayer at graduation may be constitutional, Superintendent Zenke directed Ms. Reynolds to further research the issue.²⁶ Ms. Reynolds concluded that student-initiated and student-led prayer at graduation may be appropriate so long as the School Board was not involved in the decision making process.²⁷ Superintendent Zenke, thereafter, issued a second memorandum. The memorandum provided, in part, that a brief graduation message, if so chosen, was to be prepared and delivered by a student volunteer, elected by the graduating class as a whole, without the assistance or direction of the school board or its employees.²⁸

At a subsequent school board meeting, a motion was made for a "moment of silence"²⁹ substitution for the current policy.³⁰ The motion failed by a four to three vote, leaving in effect, for the 1993 commencement exercises, Superintendent Zenke's policy which favored student-initiated and student-led prayer.³¹ As it turned out, ten of the seventeen graduating classes in the Duval County School District chose to recite various religious messages.³² The remaining classes opted to give entirely secular messages or no message at all.³³

B. Procedural History

Prior to the 1993 graduation exercises, petitioners, a group of graduating seniors and one parent, brought this action in the United States District Court for the Middle District of Florida.³⁴ Asserting that their rights under the Establishment Clause of the First Amendment were violated by Superintendent Zenke's new policy, petitioners sought to enjoin the Duval County School District from permitting student-initiated and student-led prayer at graduation.³⁵

The Middle District denied petitioners' motion for preliminary injunctive relief, finding that they failed to sustain their burden of demonstrating a substantial likelihood of success on the merits.³⁶ Subsequently, the 1993 graduation ceremonies for the Duval County

School District were conducted in accordance with the new policy.³⁷ Thereafter, the case proceeded through discovery and was presented before the Middle District on the parties' cross motions for summary judgment.³⁸

In their motion for summary judgment, petitioners argued that prayer during graduation is per se unconstitutional, and that the school board could not avoid responsibility by delegating decision making to the graduating students.³⁹ Respondents, asserting their own First Amendment right of Free Speech,⁴⁰ argued that student-initiated, student-written and student-delivered prayer at graduation is not subject to official monitoring by the school board or its employees and, therefore, lacks the pervasive government involvement condemned by the Establishment Clause.⁴¹

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the Middle District found no genuine issue of material fact, holding that respondents were entitled to prevail on the constitutional issues as a matter of law.⁴² The Middle District, applying both Lee v. Weisman⁴³ and Lemon v. Kurtzman⁴⁴ denied petitioners' motion for summary judgment and granted respondents' cross motion.⁴⁵ Accordingly, final judgment was entered for respondents, allowing student-initiated, student-written and student-delivered prayer at graduation.⁴⁶

C. Analysis

Nine years following the holding in Marsh v. Chambers ⁴⁷ Justice Kennedy, writing for the Court in Lee v. Weisman,⁴⁸ denied application of the well-established doctrine of civil religion in the context of traditional⁴⁹ graduation exercises.⁵⁰ To permit prayer at graduation, the Court held, would be to coerce⁵¹ dissenting graduation attendees to participate in religious exercises.⁵² The Court, though acknowledging the similarities between legislative invocations and traditional prayer at graduation,⁵³ took great strides in distinguishing Marsh and Lee.⁵⁴ The Court's distinction was grounded in psycho-theory:⁵⁵ That the "atmosphere" at graduation lent itself to a greater likelihood of coercing religion upon the attendees; in particular, the graduating seniors.⁵⁶

The Lee Court, in addition to confusing civil religion with sectarian religion,⁵⁷ turned a blind eye to over two hundred years of American history.⁵⁸ Common sense and judicial integrity require the application of history in constitutional analysis.⁵⁹ Undeniably, therefore, the intent and impressions of our Founding Fathers must be afforded considerable weight when analyzing the Constitution.⁶⁰ Indeed, the Framers of our Constitution were opposed to the alliance of a single religion with the sovereign.⁶¹ Their concerns date back to the colonial period, and much earlier, where the sovereign exercised complete control over the Church, and, in turn, provided the Church its foundation by compelling attendance and financial support.⁶² By use of the "civil sword," the sovereign conformed the beliefs of its citizenry to that of the Church and punished, by death or banishment, the blasphemer or heretic.⁶³ The "imminent target"⁶⁴ of our Founders, therefore, was the eradication of this form of government establishment of religion; sectarian religion, that is, coerced by threat of penalty.⁶⁵

Although Justice Kennedy's holding in Lee is the law, however unfortunate, the application of history to the Court's...