“For those who have been attacking the pledge we would offer this: our system protects their right to remain silent, but it doesn’t give them a right to silence others.”
— Chief Justice Roderick Ireland, Massachusetts Supreme Court
“It does me no injury for any neighbor to say that there are twenty gods or no god. It neither picks my pocket nor breaks my leg.”
— Thomas Jefferson
Several years ago, I had the honor of delivering the graduation address at Hayes High School. I’ll be in the crowd at this evening’s ceremony, attending the festivities as the proud parent of a graduate. With graduation season upon us, thousands upon thousands of high school and college students and their families will attend similar graduation ceremonies. Most of the ceremonies at private schools will include an invocation and benediction. Most of the ceremonies at public schools will not, or at least will include non-specific, non-denominational comments. The reason for that can be traced to a middle school graduation ceremony in Providence, Rhode Island.
Daniel Weisman, a father of two, had complained about the inclusion of prayers at his older child’s middle school graduation. When it came time for his second child to graduate, Weisman was informed by the middle school principal that there would again be an invocation and benediction at the graduation ceremony. Weisman sued and asked for an injunction — an emergency order to prevent someone from doing a particular act.
Weisman’s request for an injunction was denied and Rabbi Leslie Gutterman provided an invocation thanking God “for the legacy of America where diversity is celebrated” and a benediction in which he stated, “O God, we are grateful for the learning which we have celebrated on this joyous commencement. We give thanks to you, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion.”
The case eventually reached the U.S. Supreme Court, which ruled 5-4 that the invocation and benediction were unconstitutional endorsements of religion by a government entity — the school district. That decision was delivered 30 years ago in June of 1992.
Justice Kennedy, in delivering the ruling of the court, stated that, “the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” He continued, “The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion.”
Justice Scalia, writing for the four dissenters, was not at all convinced of Justice Kennedy’s “inherent coercion” argument. He stated, “The Court’s notion that a student who simply sits in ‘respectful silence’ during the invocation and benediction (when all others are standing) has somehow joined- or would somehow be perceived as having joined- in the prayers is nothing short of ludicrous. We indeed live in a vulgar age. But surely ‘our social conventions’ have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence.”
Eight of the nine justices on the court at the time have since retired or died. A decade ago, a deeply divided court decided another 5-4 case, with the decision again written by Justice Kennedy, reaching a very different conclusion. That case, Town of Greece v. Galloway, held that a public prayer opening the legislative sessions of the Town of Greece, New York, did not violate the Constitution and could continue. Kennedy distinguished Galloway from Lee because Galloway did not involve children and involved legislative prayer, for which there is a long American history of acceptance.
In 2019, the U.S. Supreme Court declined to hear an Eighth Circuit Court of Appeals case holding that the phrase “In God We Trust” on currency does not violate the Constitution because it does not compel citizens to adopt any religious belief. The Supreme Court had previously refused to consider that same issue. On multiple occasions, the U.S. Supreme Court has declined to hear cases questioning whether the phrase “Under God” in the Pledge of Allegiance was constitutionally impermissible, though individual justices have indicated their belief that the phrase was acceptable when writing concurrences in other cases.
The Rhode Island case from 1992 is Lee v. Weisman, 505 U.S. 577, and the full text of that decision can be found online at www.findlaw.com. The full text of Town of Greece v. Galloway can be found on the website of the United States Supreme Court.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.