University of Baltimore Law Forum Volume 23 Article 10 Number 2 Fall, 1992

1992 Recent Developments: Lee v. Weisman: Court Holds Non-Sectarian Prayer at Secondary School Graduation Ceremony Violates Establishment Clause of the First Amendment to the Constitution David E. Canter

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Recommended Citation Canter, David E. (1992) "Recent Developments: Lee v. Weisman: Court Holds Non-Sectarian Prayer at Secondary School Graduation Ceremony Violates Establishment Clause of the First Amendment to the Constitution," University of Baltimore Law Forum: Vol. 23 : No. 2 , Article 10. Available at: http://scholarworks.law.ubalt.edu/lf/vol23/iss2/10

This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. land General Assembly used this same sider the three-part Establishment Committee from continuing to employ principle in establishing the statutory Clause test set forth in Lemon lI. this practice. Id. Specifically, the right to a jury trial under section 4- Kurtzman, 403 U.S. 602 (1971). school district violated the second prong 302( e)(2)(i). In lune 1989, Deborah Weisman ofthe Lemon test by creating an atmo­ In addition, because one of the graduated from Nathan Bishop Middle sphere in which the state identified criminal violations was dismissed by School, a public school in Providence, with a religion. Id. the district court after a jury trial was Rhode Island The school principal The school officials appealed to demanded by the corporate defendants, invited a rabbi to deliver prayers in the United States Court ofAppeals for the court ofappeals clarified the effect conjunction with the graduation exer­ the First Circuit which agreed with the of the dismissal on the right to a jury cises for the class. The principal pro­ holding and rationale of the district trial. Id. at 467 n. 6, 610 A.2d at 768 n. vided the speaker with a pamphlet en­ court. Id. The United States Supreme 6. The court noted that it considered titled ''Guidelines for Civic Occasions," Court granted certiorari to address the the offenses charged at the time ofthe prepared by the National Conference issue ofwhether the use ofinvocations demand for a jury trial. Id. As long as ofChristians andlews. This pamphlet and benedictions at a public school the defendant was entitled to a jury trial advised members of the clergy per­ graduation violated the Establishment at the time ofthe demand, a subsequent forming the prayers that the invocation Clause of the First Amendment to the dismissal or nol pros of one of the and benediction should be non-sectar­ Constitution. charged offenses has no effect on the ian. In this case, the invocation and The Court began its analysis by right to a jury trial. Id. (citing State v. benediction were non-sectarian, how­ emphasizing that even though atten­ Huebner, 305 Md. 601, 606-07, 505 ever, they did contained references to dance at public school graduation is A.2d 1331, 1334 (1986)). God. voluntary, "attendance and participa­ In 3011 Corp. v. District Court, Prior to Deborah's graduation cer­ tion [which may include] state-spon­ the court of appeals established that a emony, Deborah's father, Daniel sored religious activity are in a 1hlr and corporation has the same statutory right Weisman, in his individual capacity as real sense obligatory ..." Id. at 2655. to a jury trial as an individual charged a taxpayer and as next friend of The Court explicitly refused the invita­ with the same criminal offense if the Deborah, sought a temporary restrain­ tion to reconsider its decision inLemon, offense carries a prison sentence in ing order in the United District Court because the government involvement excess of90 days. In placing its focus for the District of Rhode Island. with the invocation and benediction at on the statutory penalty, and not the Weisman sought to prohibit the school the public school graduation was ''per­ penalty applicable to the particular officials from including the prayers in vasive, to the point ofcreating a state­ defendant in a case, the court of ap­ the graduation ceremony. The court sponsored and state directed religious peals reaffirmed the fundamental na­ denied the motion and her family even­ exercise in a public schooL" Id. The ture of the right to jury trial and the tually attended the graduation where Court noted that the school principal's principle that, although not subject to the prayers were recited involvement with the composition of imprisonment, corporations are treated Thereafter, the case was submitted the prayers and the choice ofa rabbi to like individuals under the law. to the District Court on stipulated facts. perform the prayers was akin to the - Kenneth A. Brown The court held that the practice of State deciding by statute that an invo­ utilizing prayers in the context ofpub­ cation and benediction should be given. Lee v. Weisman: COURT HOLDS lic school graduations violated the Id. at 2655. Along similar lines, the NON-SECT ARIAN PRAYER AT three-part Establishment Clause test court reasoned that by providing the SECONDARY SCHOOL GRADU­ enunciated in Lemon v. Kurtzman, 403 rabbi with a copy ofthe Guidelines for ATION CEREMONY VIOLATES U.S. 602 (1971). Under the Lemon Civic Occasions, the principal ostensi­ ESTABLISHMENT CLAUSE OF test, in order ''to satisfy the Establish­ bly "directed and controlled the con­ THE FIRST AMENDMENT TO ment Clause, a governmental practice tent of the prayer." Id. at 2656. The THE CONSTITUTION. must (1) reflect a clearly secular pur­ Court asserted that it was inappropri­ InLeev. Weisman, 112 S. Ct. 2649 pose; (2) have a primary effect that ate for government to compose or pro­ (1992), the United States Supreme neither advances nor inhibits religion; vide official prayers for recitation at an Court held that offering invocation and and (3) avoid excessive government event in part sponsored by the govern­ benediction prayers as part ofthe for­ entanglement with religion." Weisman, ment. Id. at 2656 (citing Engel v. mal graduation ceremonies for sec­ 112 S. Ct. at 2654 (citing Committee Vitale, 370 U.S. 421,425 (1962)). ondary schools violated the Establish­ for Public Education & Religious Lib­ The Court next turned its analysis ment Clause of the First Amendment erty lI. Nyquist, 413 U.S. 756, 773 to the issue ofcoercive pressure among to the United States Constitution. Inso (1973)). Applying this test, the district students in elementary and secondary holding, the Court declined to recon- court enjoined the Providence School public schools and the n~ to protect

23.2 I The Law For u m 27 ''their freedom of conscience." Id at The Court's opinion reinforced its com­ institution, or person" for judicial re­ 2658 (citing Abington School District mitment to protect public school chil­ view ofany "order, rule or regulation" v. Schempp. 374 U.S. 203, 307 (1963) dren from the possibility of religious issued by the Secretary ofthe Depart­ (Goldberg, J., concurring». Appar­ coercion by the State. Moreover, the ment of the Environment. Medical ently, the Court feared that non-believ­ decision sends the message that the WasteAssoc., 327 Md. at 599 n.l, 612 ers could construe the graduation Court will not tolerate even the slight­ A.2d at 243 n.l (citing Md Envir. prayers to signify the school's, and est government endorsement of any Code Ann § 9-263 (1991 Cum.Supp.». consequently the State's, endorsement religion where young adults or children Medical Waste Associates and the De­ of "a religious orthodoxy." Id. The are involved. partment ofthe Environment both filed Court noted that prayer exercised in - David E. Canter motions to dismiss. They contended public schools carried the risk of indi­ that the Coalition lacked subject mat­ rect coercion. Id Medical WIlSIe Assoc. v. Maryland ter jurisdiction because there was no Finally, the Court distinguished WIlSIe Coalition: MARYLAND EN- "order" for section 9-263 review, and its decision in Marsh v. Chambers. 463 VIRONMENT AL STANDING ACT lacked standing because the Coalition U.S. 783 (1983), where it upheld the DOES NOT APPLY TO AN ORGA- had no interest separate and distinct constitutionality of the Nebraska NIZATION THAT SEEKS JUDI- from its members. TheCoaiitionfiled legislature's practice of opening each CIAL REVIEW OF AN ADMINIS- another complaint against the Depart­ ofits legislative sessions with a prayer TRA TIVE PROCEDURE. ment of the Environment, under the offered by a chaplain who was paid In Medical Waste Assoc. v. Mary- . Administrative Procedure Act in the with public funds. The Court noted land Waste Coalition, 327 Md. 596, State Government Article, section 10- that inherent differences exist between 612 A.2d 241 (1992), the Court of 215, Maryland Code Annotated. the public schools and state legisla­ Appeals of Maryland had its first op- ("APA"). Under the APA, a "party tures. Id. Namely, the legislative portunity to interpret the Maryland who is aggrieved by a final decision in session pertained to adults who were Environmental Standing Act a contested case is entitled to judicial free to enter and leave, whereas a high ("MESA"). The court held that MESA review ofthe decision." Medical Waste school graduation involves young stu­ does not grant environmental groups Assoc., 327 Md. at 608,612 A.2d at dents who may feel pressure to con­ standing to participate in judicial re- 247. Medical Waste Associates filed form. Id. at 2660-61. view of administrative decisions. The a motion to intervene and, along with In dissent, Justice Scalia empha­ court, however, did hold that the deci- the Department of the Environment, sized that ''the Establishment Clause sion to issue a permit for a medical filed a motion to dismiss. The defen­ must be construed in light ofthe 'gov­ waste incinerator was subject to judi- dants contended that the administIa­ ernmental policies ofaccommodation, cial review. tive proceedings prior to the issuance acknowledgement, and support for re­ Maryland Waste Coalition ("Coali- of the two permits were legislative, ligion [that] are an accepted part ofour tion") is an incorporated volunteer or- and thus were not contested cases un­ political and cultural heritage. '" Id. at ganization whose purpose is to protect der the AP A. 2678 (Scalia, J., dissenting). Scalia Maryland's environment. The Coali- The circuit court granted the mo­ believed the majority's opinion ignored tion objected to a refuse disposal permit tions to dismiss and the Coalition ap­ the long standing traditions of bene­ and an air quality control permit autho- pealed both decisions to the Court of dictions and invocations at public rizing construction ofa medical waste Special Appeals ofMaryland. Inaddi­ school graduations. Id. at 2679. He incinerator which were issued to Medi- tion to its previous arguments, the opined that the Court had created a cal Waste Associates by the Maryland Coalition invoked MESA as an indi­ psychological coercion test capable of Department of the Environment. Pub- cation ofthe General Assembly's in­ being manipulated. Id. at 2679. In lic hearings were held regarding the tent to give standing to groups raising essence, Scalia chided the majority for permits, at which the Coalition testi- environmental issues. The case was replacing the Lemon test with a psycho­ fled. remanded to the Circuit Court for Bal- coercion test which has no roots or After the permits were issued, the timore City for further proceedings on traditions in the American system. Id. Coalition filed a complaint in the Cir- the action for judicial review under at 2685 cuit Court for Baltimore City against MESA. In Weisman. the Court declared Medical Waste Associates and the De- The Court of Appeals of Maryland the practice ofclergy performing invo­ partment of the Environment seeking granted the petitions and cross peti­ cations and benedictions at public an injunction under section 9-263 ofthe tions for certiorari, to review whether school graduations unconstitutional Environment Article. Section 9-263 the issuance ofpermits was subject to within the meaning of the Establish­ states that an action may be commenced judicial review under either section 9- ment Clause of the First Amendment. by "any county, municipality. . . 263 or the AP A, and whether the Coa-

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