Sands v. Morongo Unified School District , 53 Cal. 3d 863 ( 1991 )

LUCAS, C. J.,

Concurring.—This is a difficult and important case. As the opinions of the justices reveal, the issue of prayer at high school graduations and ceremonies has been judicially debated across the nation. The United States Supreme Court has recently granted certiorari in Lee v. Weisman (cert, granted Mar. 18, 1991, _ U.S. _ [113 L.Ed.2d 240, 111 S.Ct. 1305]) (hereafter Lee), in which the Court of Appeals for the First Circuit (Weisman v. Lee (1st Cir. 1990) 908 F.2d 1090) held that a public prayer delivered by a clergyman at the close of a high school graduation ceremony violated the establishment clause of the First Amendment as construed in Lemon v. Kurtzman (1971) 403 U.S. 602 [29 L.Ed.2d 745, 91 S.Ct. 2105] (hereafter Lemon). This case raises the same issue and may reach the court in due course and in sufficient time to be considered with Lee.

Reluctantly, I concur in the judgment. On issues of federal constitutional law, this court is bound under the supremacy clause of the United States Constitution by applicable decisions of the United States Supreme Court. (Chesapeake & Ohio Ry. Co. v. Martin (1931) 283 U.S. 209 [75 L.Ed. 983, 51 S.Ct. 453]; Scott v. Industrial Acc. Com. (1937) 9 Cal.2d 315, 323 [70 P.2d 940].) Based on my reading of the relevant Supreme Court authority, I conclude that the Morongo Unified School District’s practice of allowing invited members of the clergy and others to offer prayers at high school graduation ceremonies violates the second prong of the high court’s Lemon test, i.e., the primary effect of the practice is one that “advances . . . religion.” (Lemon, supra, 403 U.S. at pp. 612-613 [29 L.Ed.2d at p. 755].)

I write separately for two reasons.

First, as revealed by recent United States Supreme Court decisions, the law is in a state of flux in this area. The First Amendment forbids government action “respecting an establishment of religion or prohibiting the free exercise thereof.” (U.S. Const., 1st Amend.) State-composed and financed prayers, Bible readings, and other religious exercises, even though nominally voluntary, cannot constitutionally form a part of public instruction in this country. )Abington School Dist. v. Schempp (1963) 374 U.S. 203 [10 L.Ed.2d 844, 83 S.Ct. 1560]; Engel v. Vitale (1962) 370 U.S. 421 [8 L.Ed.2d 601, 82 S.Ct. 1261, 86 A.L.R.2d 1285].) Yet, as Justice Douglas observed: “We are a religious people whose institutions presuppose a Supreme Being.” (Zorach v. Clauson (1952) 343 U.S. 306, 313 [96 L.Ed. 954, 963, 72 S.Ct. 679].) Throughout our history, government institutions have recognized our religious heritage in symbols and ceremonies that express faith and confidence in such a Supreme Being, including the offering of prayer. (Marsh v. Chambers (1983) 463 U.S. 783, 786-792 [77 L.Ed.2d 1019, 1023-1028, 103 S.Ct. 3330] (hereafter Marsh).) This case lies at the crossroads between public instruction and public ceremony. As such, it affords an opportunity to reexamine basic principles and values underlying the religion clauses of the First Amendment.

Second, like Justice Arabian, I would not reach the state constitutional issues raised by the parties. Resolution of those issues is not necessary to our decision. Particularly in light of the importance of this case and the climate in which it is decided, I would await the guidance that will emanate from full consideration of the First Amendment issues by the United States Supreme Court before exercising our independent powers to construe provisions of the California Constitution. In this way, we can best carry out our authority to proceed in a manner that is “informed but untrammeled” by the views of the high court. (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 842 [117 Cal.Rptr. 437, 528 P.2d 45].)

I. The First Amendment

The purpose of the establishment and free exercise clauses of the First Amendment is “ ‘to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other.’ ” (Lynch v. Donnelly (1984) 465 U.S. 668, 672 [79 L.Ed.2d 604, 609, 104 S.Ct. 1355] (hereafter Lynch), quoting Lemon, supra, 403 U.S. at p. 614 [29 L.Ed.2d at p. 756].) Both the general language of the First Amendment and its interpretation by the courts suggest that bright and immutable lines and rigid, absolute views are out of place in this area of the law. The religion clauses may not be construed “with a literalness that would undermine the ultimate constitutional objective as illuminated by history.” (Walz v. Tax Commission (1970) 397 U.S. 664, 671 [25 L.Ed.2d 697, 90 S.Ct. 1409], italics added; see also Lynch, supra, 465 U.S. at p. 678 [79 L.Ed.2d at p. 613].)

History plays two important roles in constitutional analysis. Initially, it aids in the search for core values and principles underlying the text of the Constitution that may reveal with greater specificity than the text itself the evils sought to be prevented and the benefits sought to be obtained by constitutional provisions. A proper interpretation of the clauses must comport with “what history reveals was the contemporaneous understanding of [their] guarantees.” (Lynch, supra, 465 U.S. at p. 673 [79 L.Ed.2d at p. 610].) “Establishment Clause precedents have recognized the special relevance in this area of Mr. Justice Holmes’ comment that ‘a page of history is worth a volume of logic.’ ” (Committee for Public Education v. Nyquist (1973) 413 U.S. 756, 111, fn. 33 [37 L.Ed.2d 948, 965, 93 S.Ct. 2955], quoting New York Trust Co. v. Eisner (1921) 256 U.S. 345, 349 [65 L.Ed. 963, 983, 41 S.Ct. 506, 16 A.L.R. 660].)

History also provides a means to assess whether particular government practices have enhanced or inhibited basic constitutional values and principles over time. Although long-standing tradition alone does not constitutionally validate a policy or practice, it may be a factor of great importance in a pragmatic evaluation of its character and effect. As the Supreme Court said in upholding tax exemptions for churches: “It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and predates it. Yet an unbroken practice of according an exemption to churches, openly and by affirmative state action, not covertly or by state inaction, is not something to be lightly cast aside. Nearly 50 years ago Mr. Justice Holmes stated: ‘If a thing has been practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it. . . .’” (Walz v. Tax Commission, supra, 397 U.S. at p. 678 [25 L.Ed.2d at p. 707].)

A. Principles Underlying the Religion Clauses

Religion played a decisive role in the colonization of the New World and the early development of the United States. The history of religious establishments in the colonies and the relationship between church and state at the time of adoption of the Constitution and the Bill of Rights, including the practice of public prayer, has been thoroughly explored by scholars. (See, e.g., Wood, Religion and the Bill of Rights, in The First Freedom (1990) (hereafter Wood); Smith, Public Prayer and the Constitution (1987); Curry, The First Freedoms (1986) (hereafter Curry); Cord, Separation of Church and State (1982) (hereafter Cord); Rice, The Supreme Court and Public Prayer (1964) (hereafter Rice); Stokes & Pfeifer, Church and State in the United States (1964).) The Supreme Court has made extensive use of this history in resolving issues arising under the religion clauses. (See, e.g., Lynch, supra, 465 U.S. at pp. 673-678 [79 L.Ed.2d at pp. 609-613]; Marsh, supra, 463 U.S. at pp. 786-791 [77 L.Ed.2d pp. 1023-1027]; Walz v. Tax Commission, supra, 397 U.S. at pp. 677-692 [25 L.Ed.2d at pp. 706-715.)

A review of the Supreme Court precedent and the history of public ceremonial prayer referred to therein reveals two general principles underlying First Amendment law in this area. An examination of these principles will serve as a guide to discussion of the legal issues presented by this case.

1. Church-state Disengagement

Mindful of the pitfalls of their European heritage, the framers of the Constitution sought to prevent civil strife emanating from religious differences and to secure “freedom of conscience,” i.e., the right to make individual choices in matters of religious belief and practice free from pressures, direct or indirect, applied by government. To this end, they required the state to be officially disengaged from church institutions in the sense that it could not create or sustain those institutions or favor one institution over another in making governmental decisions. Nor could it force or coerce individuals to engage in religious activity or make decisions about their rights or privileges as citizens on the basis of religious profession or lack of it.¹ I will refer to this principle as “church-state disengagement.”²

The church-state disengagement principle is an important reflection of the pluralism and diversity of American society and its religious traditions, a fact that has continued and increased in the two centuries since the Constitution was adopted. As one commentator has written: “[Rjeligious diversity, not religious unity, characterized the life of the new nation. In the absence of any religious consensus among a population the vast majority of whom was unchurched . . . assurances of religious liberty were needed . ... At the time of the ratification of the Constitution, fewer than 10 percent of the population were members of churches and synagogues and ‘in 1800 there were fewer churches relative to the population at any time before or since.’ ” (Wood, supra, Religion and the Constitution, at p. 10.)

The Supreme Court’s decisions dealing with the religion clauses reflect the church-state disengagement principle, including its prohibitions of government preference among churches, government financial aid to churches, and promotion of religious practice. In striking down a Minnesota law requiring registration of some churches but not others as charitable organizations, the court observed: “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another. . . . [fl] This constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause.” (Larson v. Valente (1982) 456 U.S. 228, 244-245 [72 L.Ed.2d 33, 54, 102 S.Ct. 1673].)

In Lemon, supra, 403 U.S. 602, the court invalidated a salary supplement paid to nonpublic school teachers and a reimbursement of instructional expenses at those schools, articulating a three-prong test requiring a challenged practice to have a secular purpose, to exhibit a primary effect which neither advanced nor inhibited religion, and to avoid excessive government entanglement with religion. {Id. at pp. 612-613 [29 L.Ed.2d at pp. 755-756].) The Lemon test, with its focus on the distinction between religious and secular purpose and effect, has become the standard establishment clause measuring device, extending as well to cases not involving parochial school financing. (See, e.g., County of Allegheny, supra, 492 U.S. 573; Lynch, supra, 465 U.S. 668.)

As noted above, the court has also found violations of the religion clauses in cases of government-composed and sponsored prayer and Bible reading in school classrooms. (Abington School Dist. v. Schempp, supra, 374 U.S. 203; Engel v. Vitale, supra, 370 U.S. 421.) In Engel, the court struck down a school prayer written and prescribed by state government for recitation in classrooms. Although it declined to impose any burden of showing “direct governmental compulsion” on a plaintiff in an establishment clause case, it observed that indirect pressure was nonetheless present: “When the power, prestige, and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to the prevailing officially approved religion is plain.” (370 U.S. at p. 431 [8 L.Ed.2d at p. 608].)

Distinguishing between the prescription of prayer in the classroom and the provision of a forum for student activity, the Supreme Court recently upheld a federal statute providing for use of school facilities by high school student organizations on a nondiscriminatory basis. The high school in question had denied facility privileges to a Christian club composed of its students, while according privileges to nonreligious student groups. On the religion clause issues, no opinion commanded a majority of the court.

Writing for four justices, Justice O’Connor stated in part: “[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” (Board of Education v. Mergens (1990) 496 U.S. 226, _ [110 L.Ed.2d 191, 215-216, 110 S.Ct. 2356, 2372] (hereafter Mergens).)

2. Benign Recognition of Religion as Part of American Culture

The public acknowledgement of a Supreme Being is a consistent element of American culture, specifically endorsed by the framers and upheld in the traditions of both state and national governments since the founding of the republic. In upholding the Nebraska Legislature’s practice of opening its sessions with prayer offered by a government-paid and appointed chaplain, the Supreme Court observed that the First Congress had authorized payment of chaplains and adopted a tradition of legislative prayer at the same time it approved the Bill of Rights. (Marsh, supra, 463 U.S. at pp. 787-788 [77 L.Ed.2d at pp. 1024-1025].)³ From its review of this history, the court concluded: “[T]he delegates [to Congress] did not consider opening prayers as a proselytizing activity or as symbolically placing the government’s ‘official seal of approval on one religious view’.... Rather, the Founding Fathers looked at invocations as ‘conduct whose . . . effect . . . harmonize[d] with the tenets of some or all religions.'' ” (463 U.S. at p. 792 [77 L.Ed.2d at p. 1027], italics added.)

Since the First Congress, national government encouragement of public prayers, and other generalized references to a Supreme Being, has continued. Presidential proclamations calling upon the nation to pray and give thanks have been regularly issued. Presidential inaugural and other addresses from the founding of the republic to the present day have sought blessings on our nation and its leadership, and encouraged prayer. (Cord, supra, at p. 35; Rice, supra, at pp. 177-193.)⁴

Even as the nation grew and diversified in the 19th century, the view that the religion clauses did not forbid government sponsorship of public prayer continued to prevail. Thomas Cooley, one of the great constitutional scholars of the era, commented on constitutionally permissible practices involving of “solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires.” He cited as examples military chaplaincies, legislative prayer, and tax exemptions for churches. Recognizing the dangers of entanglement, however, Cooley cautioned: “Undoubtedly the spirit of the Constitution will require . . . that care be taken to avoid discrimination in favor or any one denomination or sect; but the power to do any of these things will not be unconstitutional, simply because of being susceptible of abuse . . . .” (Cooley, Constitutional Limitations (1868) pp. 470-471, quoted in Cord, supra, at pp. 13-14.)

All three branches of our national government and state governments continue to make ceremonial references to a Supreme Being. As noted above, the practice of beginning legislative sessions with prayer has continued in Congress and in most of the state legislatures. The United States Supreme Court begins its sessions with the cry, “God save the United States and this Honorable Court.” (Marsh, supra, 463 U.S. at pp. 786, 788-789, fns. 10-11 [77 L.Ed.2d at pp. 1024-1026].) Federal statutes call upon the President to, among other observances, set aside a national day of prayer “on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals” (36 U.S.C. § 169h) and to “issue a proclamation calling upon the people of the United States to observe each May 30, Memorial Day, by praying, each in accordance with his religious faith, for permanent peace.” (36 U.S.C. § 169g.) (See also County of Allegheny, supra, 492 U.S. at pp. 669-671 [106 L.Ed.2d at pp. 544-545, 109 S.Ct. at pp. 3141-3142] (Kennedy, J., conc. & dis.), and Lynch, supra, 465 U.S. at pp. 675-676, fns. 2-5 [79 L.Ed.2d at pp. 611-612] [further examples of presidential proclamations and other government action acknowledging a Supreme Being].)

The motto “In God We Trust” has appeared on United States coins and currency since the Civil War. It is recognized by federal statute as our national motto. (36 U.S.C. § 186.) With respect to the continuing use of the motto, Justice Brennan wrote: “It is not that the use of these four words [“In God We Trust”] can be dismissed as ‘de minimis’—for I suspect there would be intense opposition to the abandonment of that motto. The truth is that we have simply interwoven the motto so deeply into the fabric of our civil polity that its present use may well not present that type of involvement which the First Amendment prohibits.” (Abington School Dist. v. Schempp, supra, 374 U.S. at p. 303 [10 L.Ed. 2d at p. 904] (Brennan, J., conc.).)

Consistent with Justice Brennan’s observation, the court has upheld government practices based on traditions embedded “into the fabric of our civil policy” despite their express recognition of religion or religious ideas. (E.g., Zorach v. Clauson, supra, 343 U.S. 306 [public school children given released time from school for religious instruction]; Walz v. Tax Commission, supra, 397 U.S. 664 [tax preferences for churches]; Marsh, supra, 463 U.S. 783 [legislative prayer by paid chaplains].)

Despite the passage of time and even in our increasing diversity, inclusiveness, and sophistication as a nation, the invocation of a Supreme Being in public prayer on civic ceremonial occasions remains part of our heritage and culture. Whether in high school or college commencement exercises, Fourth of July celebrations, Memorial Day remembrances, or on other occasions, a Supreme Being is invoked in a spirit of thanks and praise and in supplications for help and guidance.⁵ In Cooley’s phrase, the “general religious sentiment of mankind” continues to be part of American culture.

In light of these principles, the religion clauses represent not a “wall of separation” but a permeable membrane. They allow the free flow of government action, based on a historical tradition that recognizes the civic importance of religion and religious ideas, but forbid overt discrimination among sects or religious groups, direct financial support of churches, government pressure designed to require or prohibit religious acts, and other conduct which, “in reality, . . . establishes a religion or religious faith or tends to do so.” (Lynch, supra, 465 U.S. at p. 678 [79 L.Ed.2d at p. 613].)

B. An Analysis of This Case

This action comes to us after plaintiffs prevailed on a motion for summary judgment and obtained a permanent injunction barring any “religious” invocations or benedictions at graduation ceremonies in the Morongo Unified School District. As the moving and ultimately prevailing party, plaintiffs had the burden of demonstrating as a matter of law the unconstitutionality of the school district’s policy and practice. (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374 [182 Cal.Rptr. 629, 644 P.2d 822].) The facts are taken from the uncontradicted evidence in the declarations, documents, and deposition testimony before the trial court.

1. Facts

The occasion is a high school graduation ceremony. Its purpose is to celebrate and commemorate an event of significance in the lives of young people and their teachers, parents, families, and friends: the successful completion of a period of academic study and physical, intellectual, and emotional growth that has brought the young people to the threshold of adulthood. The ceremony is not open to the public in the general sense. Tickets are issued to graduating students, family, and guests.

The graduation ceremony takes place after the students’ academic work has been completed and evaluated. Attendance is voluntary in this sense: a student who does not attend will nonetheless receive a diploma and will suffer no adverse effects in his or her academic or civil status. As the nature of the event suggests, however, most students and those close to them want to and do attend.

The opening and closing prayers (invocations and benedictions) are one part of the ceremony. They are brief, generally one minute or less each. Measured in terms of time expended, they are a very small part of the overall event (one or two minutes in the forty-five minute to ninety minute exercises). Measured in terms of focus, they are secondary to other events, e.g., graduation speeches and presentations, musical performances, and, in some of the schools, the presentation of diplomas. According the school superintendent, the invocation and benediction are included to continue a historical tradition which adds to the ceremonial nature of the graduation event and has the support of the local community.

Although the graduation ceremony is sponsored and supervised by the school district, it is an event carried on by, as well as for, the graduating students. A significant element of student choice pervades the program, including the selection of persons to deliver the invocation and benediction. A student leader chose the speakers to conduct the invocation and benediction at one of the schools in one year; a student committee regularly makes the selection at another school. Speakers have generally been chosen from the local clergy; on at least one occasion a teacher was chosen. Speakers serve voluntarily and receive no financial compensation.

The appendix to this opinion includes the texts of the invocation and benediction at one high school in 1986. The invocation, by a member of the clergy, begins with an introduction referring to the speaker’s graduation from the same high school 20 years earlier and expressing hope and confidence in the future, and concludes by inviting those present to join in prayer if they were so inclined, but reminding them of their freedom not to do so. The three-sentence prayer addresses the “Heavenly father,” gives thanks for the speaker’s opportunity to see the students graduate, asks for confidence and courage in light of what the graduates had accomplished, and ends with a request for a blessing “in the name of our Lord, Amen.”

The benediction speaker, a teacher, invited the audience to stand and join in prayer. Addressing the “Father,” he expressed thanks for the graduates and asked for guidance, strength, happiness, good health, and other blessings. He asked these things “in Your name, Amen.”

2. Evaluation

As the references in Justice Kennard’s and Justice Panelli’s opinions illustrate, the Supreme Court’s recent pronouncements on the religion clauses are not altogether clear. However, current decisions have generally emphasized the importance of a detailed evaluation of the context of religious activity, symbolism, and expression in assessing constitutionality. Indeed, even a sectarian religious symbol such as a creche or menorah may be constitutionally displayed in one context (Lynch, supra, 465 U.S. 668 [holiday display with Santa Claus house and Christmas tree]; County of Allegheny, supra, 492 U.S. 573 [menorah next to Christmas tree with sign referring to liberty]), but not in another (County of Allegheny, supra, 492 U.S. 573 [creche standing alone in public courthouse with Roman Catholic religious society name and New Testament quotation attached]).

Full consideration of context thus appears essential to distinguish, in First Amendment terms, between “real threat” and “mere shadow” (Abington School Dist. v. Schempp, supra, 374 U.S. at p. 308 [10 L.Ed.2d at p. 907] (conc . opn. of Goldberg, J.)). In this regard, I offer several observations regarding the graduation ceremonial prayers at issue.

First, the nature of the event allows all audience members a high degree of freedom.

If one elects to participate, he or she may infuse the brief exercise with personal beliefs and emotions, particularly since references to God are “weak symbols” which readily conform to individual interpretation. As one commentator observes: “[T]he religious use of the term ‘God’ comes as close as possible to a generic religious symbol. The symbol ‘God’ is a vessel that can be filled by most religious persons’ specific beliefs. Not only can all traditional Western and Eastern theists interpret the symbol to fit their specific faith, but Native American Indians and even most Buddhists can do so. Robert Bellah has rightly noted that ‘God’ is ‘a word which almost all Americans can accept but which means so many different things to so many different people that it is almost an empty sign.’ Thus, the symbol permits religious diversity in our pluralistic society.” (Jones, supra, 31 J. Church & State at p. 413.)

If one elects not to participate, he or she may simply observe the event as a cultural phenomenon. Even persons who object to the practice are free to decline, inconspicuously and without diminution in their status as citizens, to engage in it. As the New Hampshire Supreme Court said in upholding invocations at town meetings: “One [person attending the meeting] may regard an invocation as purely ceremonial, another as a throwback to another day and another as religious practice which should be forbidden. But however any individual. . . may describe the practice, it is not, on the facts of this case, an establishment of religion proscribed by the establishment clause of the First Amendment in any pragmatic, meaningful and realistic sense of that clause.” (Lincoln v. Page (1968) 109 N.H. 30 [241 A.2d 799, 800-801].)

Whether one participates or declines to do so, there are no adverse consequences. Neither the speaker, nor the students who chose him or her, nor the school district that approves the choice, retains any authority to impose any penalty on a person for electing not to participate in the exercise.

Second, invocations and benedictions serve an important secular function at high school graduations. They provide a sense of tradition, continuity, and transcendence that evokes positive emotions and expectations. These elements, in turn, serve to unify the community and provide a foundation for moral and ethical standards. In her concurring opinion in Lynch, Justice O’Connor observed that practices such as legislative prayers and opening court sessions with “God save the United States and this honorable court” serve “the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.” (Lynch, supra, 465 U.S. at pp. 692-693 [79 L.Ed.2d at pp. 622-623] (O’Connor, J., conc.); see also County of Allegheny, supra, 492 U.S. at pp. 628-631 [106 L.Ed.2d at pp. 518-519, 109 S.Ct. at pp. 3120-3121] (O’Connor, J., conc.).)

Although it does not appear that Justice O’Connor’s “solemnization” approach to reconciling benign recognition of religion had been adopted or applied by a majority of the court (County of Allegheny, supra, 492 U.S. at p. 595, fn. 46 [106 L.Ed.2d at p. 496, 109 S.Ct. at p. 3103] (opn. of Black-mun, J., for two justices), that approach supports the invocation and benediction used here. All three of Justice O’Connor’s functions are served by invocations and benedictions at high school graduation ceremonies. Appearing, as they do, at the beginning and end of the ceremony, invocations and benedictions serve to solemnize, highlight, and set off what goes on between. As shown by the particular invocation and benediction in this case, the speakers are recognizing the graduates and what they have accomplished and expressing confidence that their future will be a bright one. Without some sharing of these kinds of ideas and sentiments, a community is not a community.

Thus, notwithstanding that prayer is an obviously religious activity, “reasonable observers” might not view the long-standing practice of invocations and benedictions as “a disapproval of their particular religious choices, in light of the fact that they serve a secular purpose rather than a sectarian one and have largely lost their religious significance over time.” (County of Allegheny, supra, 492 U.S. at p. 631 [106 L.Ed.2d at p. 519, 109 S.Ct. at p. 3121] (conc. opn. of O’Connor, J.).)

Third, considering the principle of church-state disengagement discussed above, the record contains no evidence of government sectarian bias in either intent or effect. With respect to the selection of speakers to deliver the invocation and benediction, a significant level of student choice was involved. (Cf., Mergens, supra, 496 U.S. at p._ [110 L.Ed.2d at p. 216, 110 S.Ct. at p. 2372.) Although school officials retained final authority to approve student choices, there is no evidence that school officials used their authority to promote one sect or religious denomination over another. Clergy and school personnel from multiple denominations were represented.

With respect to the content of the messages, the speaker giving the invocation testified that his use of the term “Heavenly Father” referred to God, and that his phrase “Our Lord” referred to “One who is sovereign over the universe.” He denied that he was necessarily referring to Christ. Plaintiffs supplied no evidence to the contrary. Thus, the evidence shows the terms used in the prayers are generalized references to a Supreme Being, much like the legislative prayers sustained by the Supreme Court in Marsh, supra, 463 U.S. 783.

Of course, generalized references to God in a prayer are not consistent with the beliefs of everyone. They do not reflect the beliefs of atheists and others who may deny the existence of God or the effectiveness of prayer. But the same vice necessarily permeates the legislative prayers upheld in Marsh, supra, 463 U.S. 783, the symbolic displays in Lynch, supra, 465 U.S. 668) and County of Allegheny (supra, 109 S.Ct. 3086), and the released-time program in Zorach v. Clauson (supra, 343 U.S. 306). As those cases teach, respecting the idea of a Supreme Being by offering prayer in the context of a culture, the institutions of which presuppose its existence may not be the same as respecting an establishment of religion. So long as a practice does not suggest or promote favoritism or factionalism among churches and there is no direct or indirect pressure brought by government to force participation, it need not be universal.

In view of these observations, the invocation and benediction may be analogous to the prayers offered in the Nebraska Legislature which were sustained by the Supreme Court in Marsh, supra, 463 U.S. 783, as a benign recognition of religion as part of American culture. In Marsh, a six-member majority of the Supreme Court sustained the 200-year old practice of the Nebraska Legislature in opening its session with prayers offered by a government-paid chaplain. Without applying the Lemon (supra, 403 U.S. 602) test or positing any secular purpose for legislative prayer, the court reviewed the 200-year history of the congressional chaplaincy practice and the similar 100-year history of the Nebraska chaplaincy practice and observed: “This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged.” (463 U.S. at p. 791 [77 L.Ed.2d at p. 1027].) The court held that the founding fathers did not regard the legislative practice of prayer as proselytizing activity or as symbolically placing the government’s “ ‘official seal of approval on one religious view.’ ” (Id. at p. 792 [77 L.Ed.2d at p. 1027].) Rather, they saw it as “simply a tolerable acknowledgement of beliefs widely held among the people of this country.” (Ibid. [77 L.Ed.2d at p. 1028].) As to the particular plaintiff in the case, a Nebraska legislator and taxpayer, the court observed that, as an adult, he was not readily subject to “ ‘religious indoctrination.’ ” (Ibid. [77 L.Ed.2d at p. 1028].)

After sustaining the general practice of legislative prayer, the court went on to sustain its particular incidents in the Nebraska Legislature. It ultimately attributed no constitutional significance to the 16-year tenure of one Presbyterian clergyman as chaplain, the payment of the chaplain from public funds, or the Judeo-Christian tradition of the prayers offered. It noted the performance of guest chaplains and pointed to the lack of evidence of any “impermissible motive” in the chaplain’s selection and tenure. (Marsh, supra, 463 U.S. at p. 793 [77 L.Ed.2d at p. 1028-1029].) As to the content of the prayers, it observed: “The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.” (Id. at pp. 794-795 [77 L.Ed.2d at p. 1029].)

Like the prayers in Marsh, the invocation and benediction here are brief and general. There is no evidence that they were employed to proselytize or to disparage one or more religious sects or denominations. In this way, they are similar to the prayers in Marsh and consistent with the principle of benign recognition. Although not universal, the invocation and benediction harmonize with most religions and are a “tolerable acknowledgement of beliefs widely held among the people of this country.” (Marsh, supra, 463 U.S. at p. 792 [77 L.Ed.2d at p. 1028].)

There is, of course, a significant difference between the Nebraska Legislature and the Morongo Unified School District. In giving effect to the principle of church-state disengagement, the Supreme Court has been particularly zealous in policing the boundary between religious teaching and practice, and instruction in the public schools. In the public school context even generalized recognition of a Supreme Being has not been regarded as “benign recognition.” In light of this difference, Justice Kennard attempts to distinguish Marsh (supra, 463 U.S. 793), relying on a footnote in Edwards v. Aguillard (1987) 482 U.S. 578, 583, footnote 4 [96 L.Ed.2d 510, 518-519, 107 S.Ct. 2573], which states: “Such a historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted.”

While it is conceivable that the court was attempting to preclude reliance on Marsh in any school-related context, its dictum need not be read so broadly. Edwards involved an explicit state requirement that “creation science”—a religious belief—be taught in public school classrooms. Therefore, the court’s statement may refer only to the explicitly instructional aspect of public school education. This reading of Edwards is reinforced by the court’s broad statements about the potentially directive and coercive nature of classroom instruction: “The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary. . . . The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure.” (Edwards v. Aguillard, supra, 482 U.S. at pp. 583-584 [96 L.Ed.2d at p. 519], italics added; see also Abington School Dist. v. Schempp, supra, 374 U.S. 203, 223 [10 L.Ed.2d 844, 858-859] [“These [prayer and Bible reading] exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in school buildings under the supervision and with the participation of teachers employed in those schools. None of these factors, other than compulsory school attendance, was present in the [released time for religious instruction] program upheld in Zorach v. Clauson. [Italics added.]”].)

In addition, the Edwards footnote observes merely that historical analysis is inapposite because free public education postdated the Constitution. But although public instruction does postdate the Constitution, civic ceremonies employing invocations and benedictions do not. They are part of a tradition dating back to the founding of the republic; they involve a practice of prayer “similar to” that involved in Marsh (supra, 463 U.S. at p. 791 [77 L.Ed.2d at p. 1027]).

In contrast to the graduation ceremony, school attendance is mandatory and the degree of freedom enjoyed by students in the classroom is demonstrably less than at graduation. Teachers and other school officials have significant and direct authority over impressionable young people in school classrooms and corridors. They are paid by the state to determine what is taught and how it is taught. They wield the power to control, evaluate, and discipline student behavior and performance. As authority figures, teachers and school administrators are not uncompensated, invited speakers whose power is limited to the inherent force of their expression. (See Engel v. Vitale, supra, 370 U.S. at p. 435, fn. 21 [8 L.Ed.2d at pp. 614-615] [distinguishing classroom prayer from “patriotic and ceremonial occasions” on which, for example, a “composer’s professions of faith in a Supreme Being” were repeated]; see also id. at pp. 441-442 [8 L.Ed.2d at pp. 614-615] [observing that in directing a classroom prayer, the government is “performing a religious exercise” and “inserts a divisive influence” into the community (conc. opn. of Douglas, J.)].) Moreover, the graduation ceremony audience is composed of high school graduates (who are on the threshold of adulthood) and their parents and families. (Marsh, supra, 463 U.S. at p. 792 [77 L.Ed.2d at pp. 1027-1028].) In these circumstances, even indirect pressure is unlikely to play a significant role in student attitudes, perceptions, or practices.

There is no clear indication in any of the several Supreme Court cases that have analyzed Marsh that its holding will be confined to legislative prayer. In Lynch (supra, 465 U.S. 668), the court relied extensively on Marsh (supra, 463 U.S. 783) in reaffirming a historical approach to the religion clauses, recognizing the pervasive presence of religion and religious symbols in American life, and cautioning against “rigid, absolutist” views of the First Amendment. (465 U.S. at pp. 674-678 [79 L.Ed.2d at pp. 610-613].) The court upheld a city-erected display of a creche, Santa Claus house, and Christmas tree in a private park. In Wallace v. Jaffree (1985) 472 U.S. 38 [86 L.Ed.2d 29, 105 S.Ct. 2479] (hereafter Wallace), the court struck down the Alabama moment-of-silence statute, reaffirming its decision banning prayer in public schools. It noted the indirect coercive pressure brought on children by the statute and the Marsh (supra, 463 U.S. 783) distinction between adults not susceptible to “religious indoctrination” and children subject to “peer pressure.” (Wallace, supra, 472 U.S. at pp. 60-61, fn. 51 [86 L.Ed.2d at p. 46].) Finally, in County of Allegheny (supra, 492 U.S. 573) the Marsh decision was integrated into the analysis of each of the principal opinions. In the portion of his opinion that was endorsed by a five-person majority of the court, Justice Blackmun took care to distinguish between what he called the “general religious” and “nonsectarian” references in the legislative prayers in Marsh from the “specifically Christian symbol” of the creche which he viewed as demonstrating the “government’s allegiance to a particular sect or creed.” (County of Allegheny, supra, 492 U.S. at p. 603 [106 L.Ed.2d at p. 501, 109 S.Ct at p. 3106].) He also suggested a possible distinction between legislative prayer and government proclamations for a national day of prayer, observing that “legislative prayer does not urge citizens to engage in religious practices.” (Id. at p. 603, fn. 52 [106 L.Ed.2d at p. 501, 109 S.Ct at p. 3106], italics added.)

In a portion of his opinion endorsed by Justice Stevens, Justice Blackmun offered a further interpretation of Marsh (supra, 463 U.S. 783) based on Justice O’Connor’s concurrence in Lynch (supra, 465 U.S. 668): Legislative prayer is a form of “ceremonial deism” that serves the legitimate secular purpose of “solemnizing public occasions” and does not convey government approval of “particular religious beliefs.” (County of Allegheny, supra, 492 U.S. at p. 595, fn. 46 [106 L.Ed.2d at p. 496, 109 S.Ct. at p. 3102].) Justice O’Connor viewed the legislative prayers in Marsh as government acknowledgements of religion which are not understood as conveying “an endorsement of particular religious beliefs” because “they serve [secular purposes such as solemnizing the occasion] and because of their ‘history and ubiquity.’ ” (County of Allegheny, supra, 492 U.S. at p. 625 [106 L.Ed.2d at p. 515, 109 S.Ct. at p. 3118].) Finally, in his opinion for four justices, Justice Kennedy stated in part: “Marsh stands for the proposition, not that specific practices common in 1791 are an exception to the otherwise broad sweep of the Establishment Clause, but rather that the meaning of the Clause is to be determined by reference to historical practices and understandings. Whatever test we choose to apply must permit not only legitimate practices two centuries old but also any other practices with no greater potential for an establishment of religion. . . . The First Amendment is a rule, not a digest or compendium. A test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause.” (492 U.S. at p. 670 [106 L.Ed.2d at pp. 544-545, 109 S.Ct. at p. 3142], citation and fn. omitted.)

In view of the above, I am not prepared to isolate Marsh (supra, 463 U.S. 783) as an aberration in the mainstream of constitutional decisionmaking. Although it relies in part on a unique history, Marsh is not a historical artifact. Like Zorach v. Clauson (supra, 343 U.S. 306), Lynch (supra, 465 U.S. 668) and Walz v. Tax Commission (supra, 397 U.S. 664), it is an example of the principle of benign recognition of religion and religious practices and ideas that is part of our historical and cultural tradition. But, like every sufficient statement of a legal principle, Marsh (supra, 463 U.S. 783) contains within it parameters that limit its scope and confine its application: the court was careful to note the absence of discrimination, in either intent or effect, in favor of or against any religious denomination or group. The general reference to a Supreme Being, without more, placed the legislative prayers in Marsh within the principle of benign recognition without offending the principle of church-state disengagement. For this reason, the legislative prayers were constitutional.

Like a scientific theory, a legal principle must account for all the data, i.e., both church-state disengagement and benign recognition of religion and religious ideas in American constitutional law and civic culture. When government engages in a practice that is similar to those benign acknowledgements of a Supreme Being endorsed by the framers of the Constitution and that has stood the test of time by remaining an accepted part of culture, such practice should be upheld as constitutional unless it engages government in sectarian favoritism, financial aid to church institutions, or other conduct that pressures citizens, directly or indirectly, to believe or disbelieve. Having found none of the latter elements to be present in this case, I would, if free to do so, uphold the challenged practice of the school district.

II. The California Constitutional Provisions

As stated above, having concluded that the practice of graduation prayers violates the establishment clause of the First Amendment as construed in light of the Supreme Court’s Lemon (supra, 403 U.S. 602) test, I would not reach plaintiffs’ contentions that the practice violates provisions of the California Constitution as well.

As a result of the various opinions filed in this case, three justices have concluded that the practice violates our state Constitution, two have concluded it does not, and two (myself included) have declined to reach any state constitutional issues. Therefore, our judgment does not rest on the state Constitution; any resolution of the state constitutional issues will necessarily await another day. (County of San Mateo v. Dell J. (1988) 46 Cal.3d 1236, 1241-1242, fn. 5, & 1249-1250 [252 Cal.Rptr. 478, 762 P.2d 1202] [lead opinion signed by three justices could not be relied on; concurring and dissenting opinion of four justices represented the majority view]; Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674, 679 [59 P.2d 144] [first ground of decision expressed in judicial opinion was only the personal opinion of the writer where it was clear that other justices based their concurrence only on second ground]; Farrell v. Board of Trustees (1890) 85 Cal. 408, 415-416 [24 P. 868] [ground of decision assented to by only three justices cannot be regarded as adopted by the Supreme Court or binding as authority].)

The posture of constitutional argument in this case is frequently encountered. Legislation or government action is challenged as unconstitutional under both the state and federal Constitutions. If the statute or action is determined to be invalid under either Constitution, the case is thus disposed of; the other can, but need not, be considered. If on the other hand, the statute or action is upheld under either Constitution, the other must be considered to resolve the entire controversy between the parties. Two questions inevitably arise: (1) which constitutional ground, federal or state, should be considered first; and (2) if the case can be disposed of on the ground first considered, should the remaining ground nonetheless be reached?

The views of my colleagues are divided on these questions. My research has revealed no systematic consideration of these issues in any of our opinions and divergent patterns in our decisionmaking. Because I believe a principled approach to these questions is not only possible, but essential, I will explain why I have decided to consider the federal constitutional issues first and forgo consideration of the state constitutional issues in this case.

The California Constitution is the supreme law of our state—a seminal document of independent force that establishes governmental powers and safeguards individual rights and liberties. (Cal. Const., art. I, § 24; Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal. 3d 252, 261 [172 Cal.Rptr. 866, 625 P.2d 779, 20 A.L.R.4th 1118]; Allen v. Superior Court (1976) 18 Cal.3d 520, 525 [134 Cal.Rptr. 774, 557 P.2d 65].) As the Supreme Court of California, we are the final arbiters of the meaning of state constitutional provisions. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 354 [276 Cal.Rptr. 326, 801 P.2d 1077].) Our authority and responsibility in this regard is part of the basic structure of California government; it cannot be delegated to the United States Supreme Court or any other person or body. (Id. at pp. 354-356.) When we construe provisions of the California Constitution, we necessarily do so in light of their unique language, purposes, and histories, in accordance with general principles of constitutional interpretation established in our case law. Nor do we act differently when the state constitutional provision in issue contains the same language as a federal constitutional provision. In such a case, we are not bound by a decision of the United States Supreme Court or any other court. We must consider and decide the matter independently.

By the same token, California is not an island. We are a part of a federal system created by the Constitution of the United States. By its own declaration, that Constitution is the supreme law of the land. (U.S. Const., art. VI, cl. 2.) Our judges take oaths to support and defend the Constitution of the United States, as well as that of California, in all aspects of governmental service. (Ibid.; Cal. Const., art. XX, § 3.) The United States Supreme Court is the highest judicial authority in the federal system. (U.S. Const., art. Ill, § 1.) We have consistently emphasized in our case law that decisions of the United States Supreme Court, although not binding on questions of state constitutional law, are nonetheless entitled to great deference; we have gone so far as to say that such decisions will not be departed from in the absence of cogent and persuasive reasons. We summarized the law in this regard in Raven v. Deukmejian, supra, 52 Cal.3d 336 at page 353: “As early as 1938, we stated that ‘cogent reasons must exist before a state court in construing a provision of the state Constitution will depart from the construction placed by the Supreme Court of the United States on a similar provision in the federal Constitution.’ ”

Our policy of deference to United States Supreme Court decisions does not signify subservience or abdication of authority. It simply recognizes certain basic realities of constitutional adjudication. The United States Supreme Court is a judicial tribunal devoted in large measure to consideration of complex constitutional rights and liberties; it is the primary interpreter and protector of the guaranties of the Bill of Rights, which is the most comprehensive and far-reaching document of civil rights and liberties in our nation. Although we only rarely consider cases like this one which raise fundamental issues of liberty going to the central fabric of our society, such questions are daily grist for the mill of the Supreme Court. In view of these circumstances, and in the absence of other compelling considerations, we do well to invite and await its views before giving final and definitive answers to complex and difficult questions of constitutional law. In this way, we can give appropriate deference to its views (as our cases require) and proceed in a fashion that is “informed but untrammeled” by federal constitutional principles. (Reynolds v. Superior Court, supra, 12 Cal. 3d at p. 842.)

If, on the other hand, we leap into the breach, finally resolving the state constitutional question, we deprive ourselves of the prospect of input not only from the high court but from other state and federal courts that may consider the issue. (Michigan v. Long (1983) 463 U.S. 1032, 1037-1044 [77 L.Ed.2d 1201, 1211-1216, 103 S.Ct. 3469] [clear statement of “adequate and independent state ground of decision” in state court opinion precludes United States Supreme Court review].)

Neither the rights of the parties nor the path of the law is imperiled by deferring consideration of a parallel state constitutional question. The party seeking to invalidate the state statute or practice has received a favorable decision and appropriate relief, subject to possible United States Supreme Court review of the federal questions decided. Even if review takes place, that party can reassert state constitutional grounds on remand, if necessary. Likewise, the losing party has no cause to complain—if its statute or practice is invalid under either the federal or state constitutions, relief is in order.

If the Supreme Court does not review our decision on the federal question, it will nonetheless be binding on the courts of this state until it is effectively overruled by a subsequent decision of this or the high court. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937].) As we have observed many times, if the state constitutional issue retains significance, it will resurface in another case.

While deferral of parallel state constitutional questions is a means of obtaining the input of the Supreme Court and encouraging further national debate on complex and difficult constitutional issues, it may not be desirable in every case. For example, clear differences in the language and history of constitutional provisions may show that they are not truly parallel. In this event, high court review may not afford any valuable input into the meaning of our Constitution and the interests of judicial economy may favor disposition of both federal and state issues. There would be no point in postponing resolution of the state question if a holding of unconstitutionality on state grounds were inevitable notwithstanding the views of the high court. (See People v. Ramos (1984) 37 Cal.3d 136, 160-161 [207 Cal.Rptr. 800, 689 P.2d 430] (conc. & dis. opn. of Lucas, J.).)

With these factors in mind, I find this to be an appropriate case for deferral. The constitutional issue involved is difficult and complex and has produced a division in state and federal decisions across the country. Because of the Supreme Court’s decision to grant certiorari in Lee (supra, _ U.S._ [113 L.Ed.2d 240, 111 S.Ct. 1305]), it is likely that we will have the benefit of a high court decision on the federal issues involved in the area of high school graduation prayers within a year.

Although the federal and state constitutional provisions involved in this case are not identically worded, a key provision of article I, section 4 of the California Constitution is identical to the establishment clause of the First Amendment. As Justice Kennard observes: “In language virtually identical to the First Amendment’s establishment clause, our state Constitution declares, ‘The Legislature shall make no law respecting an establishment of religion.’ ” (Plur. opn., ante, at pp. 882-883.) I would like to have the benefit of the United State Supreme Court’s construction of this “virtually identical” language.

Conclusion

Lying, as it does, at the crossroads of constitutional principles and American traditions, the practice at issue in this case evokes great interest and strong feelings. There are sound reasons, validated by history and tradition, for government’s disengagement from religion and for its benign recognition of religion as part of culture in the form of prayerful acknowledgement of a Supreme Being at public ceremonies. The republic has survived and religious diversity has flourished under the parallel operation of both of these principles. Although a strict application of the Lemon (supra, 403 U.S. 602) test may invalidate the practice at issue here, a more sensitive and balanced application of these underlying principles may sustain it. In either event, First Amendment doctrine must fairly consider both principles if it is to be consistent with both the intent of the framers and the tenor of our times.

1 See, e.g., Curry, supra, at page 222 (“The [religion clauses] meant at least this: that each citizen had the right to free exercise of his or her religion as long as it did not ‘break out into overt acts against peace and order.’ Further . . . religion should be maintained and supported voluntarily .... [Government attempts to organize and regulate such support [are a] usurpation of power [and a] violation of liberty of conscience and free exercise of religion . . . .”); Adams and Emmerich, A Heritage of Religious Liberty (1989) 137 U.Pa.L.Rev. 1559, 1621 (“The historical record demonstrates that when a state sought to establish a church it did so by using the ‘civil sword’ to compel beliefs and conduct supportive of that church. The essence of an establishment, therefore, was governmental coercion of conscience.”); see also County of Allegheny v. American Civil Liberties U. (1989) 492 U.S. 573, 659-660 [106 L.Ed.2d 472, 537-538 109 S.Ct. 3086, 3136] (hereafter County of Allegheny) (Kennedy, J., conc. & dis.) (“[Government] may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact ‘establishes a [state] religion or religious faith, or tends to do so.’ ”), citing Lynch, supra, 465 U.S. at page 678 [79 L.Ed.2d at page 613].

2 According to recent historical studies, the principle of church-state engagement has both ideological and practical roots. It is based in part on enlightenment views of human nature as interpreted by the American settlers. Roger Williams, the founder of Rhode Island and an influential figure in the history of religious freedom, wrote that all individuals, regardless of their religious or nonreligious persuasions, possessed a natural capacity for conscience and a corresponding natural right to equal treatment in civil society. In urging that persons “not be deprived of their civil rights and liberties” on account of the presence or absence of religious convictions, Williams emphasized the ability of all persons to be “peaceable and quiet subjects, loving and helpful neighbors, fair and just dealers” and “true and loyal to the civil government.” (Williams, Complete Writings (1963) at p. 365, quoted in Wood, supra, at p. 33; see also Wood, supra, at pp. 30-34.)

But the principle also has a pragmatic foundation. The framers were not systematic theologians who sought to foster a millennium of judicial debates on religious ideas and symbols. Rather, they were statesmen who were concerned about: (1) the potential temporal power of the visible church as a social and political institution-, and (2) the potential ecclesiastical power of government to control its citizens through mandatory religious adherence. (Lynch, supra, 465 U.S. at p. 678 [79 L.Ed.2d at p. 613]; Jones, “In God We Trust” and the Establishment Clause (1989) 31 J. Church & State 381, 412 [“ ‘[Establishment’ means government support for institutions (churches) and does not concern religion in general.”]; Adams & Emmerich, supra, 137 U.Pa.L.Rev. at p. 1615 [“[T]he Founders conceived of separation in institutional rather than cultural terms. The principal evil they sought to avoid was an alliance of civil and ecclesiastical power that would threaten religious liberty; that religion and society should be separated is a notion that would have met with uniform disapproval. The centrist position that predominated among the Founders recognized that religion was great teacher of morality and an essential pillar of civil society.”].)

The framers believed that concentrations of power in the hands of any individual or institution tended to corruption and tyranny. To prevent such a concentration within government, they created a federal system with a national government of specified powers and systems of checks and balances and separations of powers. To prevent such a concentration in the church-state relationship, they prohibited national government from establishing a church or inhibiting free individual choice in church membership or religious practice. In this way, the church as an institution was to be relegated to the private sphere of life, where free competition and individual selections from among a variety of sects and denominations could be expected to produce diversity and a resulting diffusion of civil authority. (Ely, Democracy and Distrust: A Theory of Judicial Review (1980) at p. 94 [“Obviously part of the point of [the religion clauses] was to make sure the church and the government gave each other breathing space: the provision thus performs a structural or separation of powers function .... In addition], part of the explanation for the free exercise clause has to be that for the framers religion was an important substantive value they wanted to put significantly beyond the reach of at least the federal legislature.”].)

3 On the same day it approved the Bill of Rights, the First Congress passed the following resolution calling on the President to proclaim a national day of thanksgiving and prayer: “That a joint committee of both Houses be directed to wait upon the President of the United States to request that he would recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a Constitution of government for their safety and happiness.” (Annals of Cong. 949, cited in Rice, supra, at p. 48, italics added; see also Marsh, supra, 463 U.S. at p. 788, fn. 9 [77 L.Ed.2d at p. 1025].)

The First Amendment issue raised by the prospect of government encouragement of public prayer did not go unnoticed in Congress. Representative Thomas Tucker of South Carolina objected to the resolution, arguing in part: “this . . . is a business with which Congress have nothing to do; it is a religious matter, and, as such, is proscribed to us.” (Annals of Cong. 914-915, cited in Curry, supra, at p. 217.) Representative Tucker also voted against the religion clauses as they were finally adopted by Congress. Congress obviously did not share his views as to the scope and effect of those clauses.

4 President Bush continued this tradition in his addresses to the nation about the recent war in the Persian Gulf. As the war began, he asked each American to “stop what [he or she was] doing and say a prayer for all the coalition forces, and especially for our men and women in uniform, who, this very moment, are risking their lives for their country and for all of us.” He asked that “God bless and protect each and every one of them and ... the United States of America.” (Pres. Address, Feb. 25, 1991, as reported by the Financial Times, italics added.) When the war ended, President Bush reminded the people of the United States that “From the moment Operation Desert Storm commenced on January 16, until the time the guns fell silent at midnight one week ago, this nation has watched over its sons and daughters with pride—watched over them with prayer.” (Pres. Address, Mar. 7, 1991, as reported by the Associated Press, italics added.)

5 One explanation for the continuation of this tradition may be the stability of the general beliefs and attitudes of Americans about the general subjects of God and prayer. A 1988 Gallup Poll revealed that 94 percent of Americans believe in God or a universal spirit (exactly the same proportion who so reported in 1937). Ninety percent also reported that they prayed to God, with thirty-six percent doing so twice a day or more. However, only 40 percent report regular attendance at a church or synagogue. (Gallup Poll results (Dec. 24, 1988) reported in the Economist.)