Prayers Banned at School Ceremonies : Supreme Court: The justices rule 5 to 4 that grade school and high school officials may not invoke name of God. Decision is a setback for Bush Administration.

By DAVID G. SAVAGE

June 25, 1992 12 AM PT

TIMES STAFF WRITER

WASHINGTON — The Supreme Court, in an unexpectedly strong affirmation of the principle of strict separation of church and state, ruled Wednesday that public school officials may not include prayers or invoke the name of God during a grade school or high school ceremony.

The 5-4 decision, holding that a Rhode Island junior high school principal had violated the First Amendment when he invited a rabbi to deliver a brief invocation during graduation ceremonies, represented a major setback for the Bush Administration and groups seeking greater latitude for the inclusion of religion in public schools.

The Administration had entered the case convinced that the court’s newly augmented conservative majority was ready to break with the strict separation standard laid down by the landmark 1962 decision outlawing prayer in public schools. The Justice Department had urged the justices to look to this “nation’s religious heritage” and permit school ceremonies that invoke God.

Instead, Justice Anthony M. Kennedy, writing for the majority, held that “the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” Because schoolchildren are a captive audience and acutely sensitive to peer pressure, Kennedy said, a school-sponsored invocation poses a particular “risk of compelling conformity” in religious beliefs.

“What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt . . . to enforce a religious orthodoxy,” Kennedy said.

In other cases, the court has suggested a more flexible standard for religious activities in public colleges and universities because students there are older.

Joining Kennedy in the majority opinion were Justices Harry A. Blackmun, John Paul Stevens, Sandra Day O’Connor and David H. Souter.

Opposing the majority were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and Byron R. White.

The decision, which surprised many advocates of strict separation as well as those favoring a return to such practices as organized school prayers, drew strong praise from those who supported the outcome and sometimes-harsh criticism from those who did not.

“The decision is a remarkable win for church-state separation in the schools and an embarrassing rebuff to President Bush,” said Arthur Kropp of the liberal People for the American Way. “His Administration went out of its way to embrace the religious right and their school prayer agenda. With today’s decision, they all took a very big and very public fall,” Kropp said.

Brent Walker of the Baptist Joint Committee said: “I’m pleased the concept of government neutrality . . . has not been repudiated as we feared it would be.”

Bush, on the other hand, said that he was “very disappointed,” adding: “I believe that the court has unnecessarily cast away the venerable and proper American tradition of non-sectarian prayer at public celebrations.”

And Scalia, in a blistering dissent, ridiculed the decision as a “psycho-journey” and a “bulldozer of . . . social engineering.”

Kennedy’s role as the voice of the majority upholding strict separation of church and state had a special sting for the Administration and its allies because Justice Department lawyers had expected him to support their position.

An appointee of President Ronald Reagan, Kennedy had filed a dissenting opinion in an unrelated 1989 case involving a creche inside the City Hall in Pittsburgh, Pa., in which he argued that the government--instead of prohibiting such things--should follow “policies of accommodation, acknowledgment and support for religion.”

And two years ago, a majority of the justices had allowed the inclusion of Bible clubs in high schools as part of a range of after-school activities.

Rehnquist, in earlier writings, had gone so far as to argue that Thomas Jefferson had been wrong and that the First Amendment did permit the government to promote religion in general.

As a result, many legal experts, including the Bush Administration’s attorneys, believed that the court was ready to open the way for the inclusion of more religious practices in school activities.

Instead, Wednesday’s decision offered a surprisingly strong endorsement for one of the court’s most controversial decisions: the 1962 ruling that outlawed official prayers in the public schools.

That decision put a spotlight on the until-then much ignored opening words of the First Amendment: “Congress shall make no law respecting an establishment of religion.”

For most of the nation’s history, that clause had been read to mean only that Congress could not create a national church, as in England, to be supported by the taxpayers. But in the late 1940s, the high court adopted Jefferson’s view that the clause was intended to establish “a wall of separation between church and state.”

Under Chief Justice Earl Warren, the court in the 1960s declared that the First Amendment forbids organized prayers, Bible reading or similar school-sponsored efforts to promote religion.

For those hoping the present court would reverse direction, the Rhode Island case appeared to offer an appealing vehicle. The Providence principal, Robert Lee, had invited a different cleric each year to participate at graduation. In his invocation in June, 1989, Rabbi Leslie Gutterman began with the words, “God of the Free, Hope of the Brave.”

The rabbi went on to praise the “legacy of America where diversity is celebrated and the right of minorities are protected.”

But Daniel Weisman, whose daughter Deborah was graduating, disputed the principal’s policy of offering a religious invocation. He filed suit, and a federal judge agreed that the school had violated the First Amendment. A U.S. appeals court concurred.

When the Supreme Court agreed to hear the appeal in the case (Lee vs. Weisman, 90-1014), the stage was set for what advocates of greater religious observance in schools saw as a critical opportunity .

Kennedy found himself the swing vote on the divided court.

In a 20-page opinion, he said the Constitution does not require judges to “exclude religion from every aspect of public life.” Under his view, for example, cities may erect a creche in a public square to celebrate the Christmas season because, although adults and children may be exposed to this display, they are not forced to pay attention to it.

But in a school, “public pressure as well as peer pressure” may compel students to pay attention to the religious message, Kennedy said. Judges have a special duty of “protecting freedom of conscience from subtle coercive pressure” in the schools, he wrote.

“No holding by this court suggests that a school can persuade or compel a student to participate in a religious exercise,” Kennedy wrote. “This is being done here and it is forbidden” by the Constitution.

Scalia, who usually has been allied with Kennedy in past decisions, read part of his dissent in the courtroom. He began by citing Kennedy’s earlier views in the 1989 creche case, but then derided his opinion Wednesday as “incoherent” and “a jurisprudential disaster.”

The court’s opinion treats religion as “some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one’s room,” Scalia complained. He argued that a ceremonial prayer such as Gutterman’s can unify the community and “inoculate (it) from religious bigotry and prejudice.”

Conservative groups reacted with outrage at the ruling.

Concerned Women for America said it was appalled that the court restricted the religious freedom of students. The First Amendment was “never intended . . . to be used to censor religious expression from the public square,” said Beverly LaHaye, the group’s president.

“This decision sounds like the Warren Court,” said John W. Whitehead, counsel for the Rutherford Institute, a Virginia group that has represented Christian students in disputes with school officials.

Meanwhile, liberal groups, including the American Jewish Congress and the American Civil Liberties Union had nothing but praise for the ruling.