Lemon is Alive and Kicking: Using the Lemon Test to Determine the Constitutionality of Prayer at High School Graduation Ceremonies

Valparaiso University Law Review Volume 34 Number 1 pp.231-274 Fall 1999 Lemon is Alive and Kicking: Using the Lemon Test to Determine the Constitutionality of Prayer at High School Graduation Ceremonies Penny J. Meyers Recommended Citation Penny J. Meyers, Lemon is Alive and Kicking: Using the Lemon Test to Determine the Constitutionality of Prayer at High School Graduation Ceremonies, 34 Val. U. L. Rev. 231 (1999). Available at: http://scholar.valpo.edu/vulr/vol34/iss1/6 This Notes is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at . Meyers: Lemon is Alive and Kicking: Using the Lemon Test to Determine the LEMON IS ALIVE AND KICKING: USING THE LEMON TEST TO DETERMINE THE CONSTITUTIONALITY OF PRAYER AT HIGH SCHOOL GRADUATION CEREMONIES Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence.... It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it, when we wish to uphold a practice it forbids, we ignore it entirely .... Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.' I. INTRODUCTION Pat Baker, a senior at the local public high school, was thinking of graduation day. 2 All of his family and friends would be there to share in the joyous event. Pat's graduation day would begin with him wearing his cap and gown to church where all the graduates from the congregation would be honored. Then, Pat and his family would have brunch at the local diner, followed by the Baccalaureate service at the auditorium. Finally, Pat envisions the graduation service itself. After the processional, all of the graduates stand for the Pledge of Allegiance. After saying the Pledge of Allegiance, a brief invocation is read before many speeches and the distribution of diplomas. At the end of the ceremony, a benediction is performed. To Pat, the inclusion of an invocation and benediction enhances the graduation ceremony. Pat is grateful and wants to give thanks to God for providing him with guidance in achieving his diploma. High school graduation without prayer would be inconceivable for Pat. Another senior, Tammy Faye Robertson, is remembering her own past experiences with high school graduation ceremonies. Tammy dreads attending the graduation ceremony. Tammy's apprehension about attending the upcoming graduation ceremony stems from I Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398-99 (1993) (Scalia, J., dissenting). This is a fictitious story made up for the purpose of this Note. 2 Produced by The Berkeley Electronic Press, 1999 Valparaiso University Law Review, Vol. 34, No. 1 [1999], Art. 6 232 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 34 attending the graduation of her older sister in which prayers were included. Tammy does not want to listen to prayers during her high school graduation ceremony. Graduating from high school is a joyous event for most people. Yet, if the graduation ceremony contains prayers, it will not be a joyful event for Tammy. 3 Tammy feels that it is her right under the First Amendment 4 of the United States Constitution to be free from being subjected, against her will, to other people's views about religion. Tammy believes that if there is some type of prayer given during the graduation ceremony her constitutional rights will be violated; it will be like the government is giving its seal of approval on religion. To Tammy, prayer and religion are a private matter and should not be a part of a public high school graduation ceremony. High school graduation with prayer would be distressing for Tammy. The court system will have to be utilized to resolve the dispute of whether to allow prayer at the graduation ceremony. Despite widespread criticism of the test developed by the United States Supreme Court in Lemon v. Kurtzman6 to analyze Establishment Sigmund Freud expressed: "(A] religion, even if it calls itself the religion of love, must be hard and unloving to those who do not belong to it." SIGMUND FREUD, GROUP 3 PSYCHOLOGY AND THE ANALYSIS OF THE EGO 30 (1967). 4 "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. CoNsT. amend. I. 5 See Lee v. Weisman, 505 U.S. 577,644 (1992) (Scalia, J., dissenting) ("[T]he internment of [Lemon] may be the one happy by product of the Court's otherwise lamentable decision."); County of Allegheny v. ACLU of Greater Pittsburgh, 492 U.S. 573, 656 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part) ("Substantial revision of our Establishment Clause doctrine may be in order."); Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J., dissenting) (stating a "pessimistic evaluation" of Lemon); Aguilar v. Felton, 473 U.S. 402,429 (1985) (O'Connor, J., dissenting) (voicing "doubts about the entanglement test"); Wallace v. Jaffree, 472 U.S. 38,112 (1985) (Rehnquist, J., dissenting) (commenting that the Lemon test is"a constitutional theory [that] has no basis in the history of the amendment it seeks to interpret, is difficult to apply and yields unprincipled results ....). See generally Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 SUp. CT.REv. 323, 359 ("Lemon has ceased to operate as a general Establishment Clause test."); Steven G. Gey, Religious Coercion and the Establishment Clause, 1994 U. ILL. L. REV. 463, 468 ("[T]he three-part test for compliance with the Establishment Clause announced in Lemon v. Kurtzman is possibly the most maligned constitutional standard the Court has ever produced."); Laura A. Bowers, M.C.L. v. Florida: A Vignette of the InconsistenciesPlaguing Establishment Clause Jurisprudence,27 STETSON L. REV. 1437, 1459 (1998) ("The Supreme Court meant to clarify the ambiguous First Amendment Establishment Clause in Lemon. However, when the Lemon standard failed to work consistently, the Court fumbled with variations, resulting in individual Justices steadily withdrawing their support for the test - and confusing the country about Lemon's applicability and staying-power."); Michael W. McConnell, Stuck with a Lemon: A New Test http://scholar.valpo.edu/vulr/vol34/iss1/6 Meyers: Lemon is Alive and Kicking: Using the Lemon Test to Determine the 1999] LEMON IS ALIVE 233 Clause issues, this Note proposes that it is the appropriate test and may be applied properly to determine the constitutionality of prayer in high school graduation cases. 7 The Lemon test is the (...truncated)