Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/ri2.asc

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    Justice Blackmun, with whom Justice Stevens and Justice
O'Connor join, concurring.

    Nearly half a century of review and refinement of
Establishment Clause jurisprudence has distilled one clear
understanding: Government may neither promote nor affiliate
itself with any religious doctrine or organization, nor may it
obtrude itself in the internal affairs of any religious
institution.  The application of these principles to the present
case mandates the decision reached today by the Court.

I

    This Court first reviewed a challenge to state law under
the Establishment Clause in Everson v. Board of Education, 330 U.
S. 1 (1947).  Relying on the history of the Clause, and the
Court's prior analysis, Justice Black outlined the considerations
that have become the touchstone of Establishment Clause
jurisprudence:  Neither a State nor the Federal Government can
pass laws which aid one religion, aid all religions, or prefer
one religion over another.  Neither a State nor the Federal
Government, openly or secretly, can participate in the affairs of
any religious organization 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, 330 U. S., at 16, quoting Reynolds v.  United
States, 98 U. S. 145, 164 (1879).  The dissenters agreed: "The
Amendment's purpose . . . 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." 330 U.S., at 31-32 (Rutledge, J.,
dissenting, joined by Frankfurter, Jackson, and Burton, JJ.).

    In Engel v. Vitale, 370 U. S. 421 (1962), the Court
considered for the first time the constitutionality of prayer in
a public school.  Students said aloud a short prayer selected by
the State Board of Regents: "Almighty God, we acknowledge our
dependence upon Thee, and we beg Thy blessings upon us, our
parents, our teachers and our Country." Id., at 422.  Justice
Black, writing for the Court, again made clear that the First
Amendment forbids the use of the power or prestige of the
government to control, support, or influence the religious
beliefs and practices of the American people.  Although the
prayer was -denominationally neutral- and -its observance on the
part of the students [was] voluntary,- id., at 430, the Court
found that it violated this essential precept of the
Establishment Clause.

    A year later, the Court again invalidated government-
sponsored prayer in public schools in Abington School District v.
Schempp, 374 U. S. 203 (1963).  In Schempp, the school day for
Baltimore, Maryland, and Abington Township, Pennsylvania,
students began with a reading from the Bible, or a recitation of
the Lord's Prayer, or both.  After a thorough review of the
Court's prior Establishment Clause cases, the Court concluded:


      [T]he Establishment Clause has been directly considered
      by this Court eight times in the past score of years
      and, with only one Justice dissenting on the point, it
      has consistently held that the clause withdrew all
      legislative power respecting religious belief or the
      expression thereof.  The test may be stated as follows:
      what are the purpose and the primary effect of the
      enactment?  If either is the advancement or inhibition
      of religion, then the enactment exceeds the scope of
      legislative power as circumscribed by the Constitution.
      Id., at 222.

Because the schools' opening exercises were government- sponsored
religious ceremonies, the Court found that the primary effect was
the advancement of religion and held, therefore, that the
activity violated the Establishment Clause.  Id., at 223-224.

    Five years later, the next time the Court considered
whether religious activity in public schools violated the
Establishment Clause, it reiterated the principle that government
"may not aid, foster, or promote one religion or religious theory
against another or even against the militant opposite." Epperson
v. Arkansas, 393 U. S. 97, 104 (1968).  "`If [the purpose or
primary effect] is the advancement or inhibition of religion then
the enactment exceeds the scope of legislative power as
circumscribed by the Constitution.'" Id., at 107 (quoting
Schempp, 374 U. S., at 222).  Finding that the Arkansas law aided
religion by preventing the teaching of evolution, the Court
invalidated it.

    In 1971, Chief Justice Burger reviewed the Court's past
decisions and found: -Three . . . tests may be gleaned from our
cases.- Lemon v. Kurtzman, 403 U. S. 602, 612.  In order for a
statute to survive an Establishment Clause challenge, "[f]irst,
the statute must have a secular legislative purpose; second, its
principal or primary effect must be one that neither advances nor
inhibits religion; finally the statute must not foster an
excessive government entanglement with religion." Id., at 612-613
(internal quotation marks and citations omitted).  After Lemon,
the Court continued to rely on these basic principles in
resolving Establishment Clause disputes.

    Application of these principles to the facts of this case
is straightforward.  There can be -no doubt- that the "invocation
of God's blessings" delivered at Nathan Bishop Middle School "is
a religious activity." Engel, 370 U. S., at 424.  In the words of
Engel, the Rabbi's prayer "is a solemn avowal of divine faith and
supplication for the blessings of the Almighty.  The nature of
such a prayer has always been religious." Ibid.  The question
then is whether the government has plac[ed] its official stamp of
approval- on the prayer.  Id., at 429.  As the Court ably
demonstrates, when the government -compose[s] official prayers,-
id., at 425, selects the member of the clergy to deliver the
prayer, has the prayer delivered at a public school event that is
planned, supervised and given by school officials, and pressures
students to attend and participate in the prayer, there can be no
doubt that the government is advancing and promoting religion.
As our prior decisions teach us, it is this that the Constitution
prohibits.

II

    I join the Court's opinion today because I find nothing
in it inconsistent with the essential precepts of the
Establishment Clause developed in our precedents.  The Court
holds that the graduation prayer is unconstitutional because the
State "in effect required participation in a religious
exercise."Ante, at 14.  Although our precedents make clear that
proof of government coercion is not necessary to prove an
Establishment Clause violation, it is sufficient.  Government
pressure to participate in a religious activity is an obvious
indication that the government is endorsing or promoting
religion.

    But it is not enough that the government restrain from
compelling religious practices: it must not engage in them
either.  See Schempp, 374 U. S., at 305 (Goldberg, J.,
concurring).  The Court repeatedly has recognized that a
violation of the Establishment Clause is not predicated on
coercion.  See, e.g., id., at 223; id., at 229 (Douglas, J.,
concurring); Wallace v. Jaffree, 472 U. S. 38, 72 (1985)
(O'Connor, J., concurring in judgment) ("The decisions [in Engel
and Schempp] acknowledged the coercion implicit under the
statutory schemes, but they expressly turned only on the fact
that the government was sponsoring a manifestly religious
exercise" (citation omitted)); Comm. for Public Ed. v. Nyquist,
413 U. S. 756, 786 (1973) ("[P]roof of coercion . . . [is] not a
necessary element of any claim under the Establishment Clause").
The Establishment Clause proscribes public schools from
"conveying or attempting to convey a message that religion or a
particular religious belief is favored or preferred," County of
Allegheny v.  ACLU, 492 U. S. 573, 593 (1989) (internal
quotations omitted) (emphasis in original)