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Justices Prohibit Prayer at Public School Rites : Religion: The state Supreme Court rules that benedictions at graduation violate the U.S. Constitution.

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TIMES LEGAL AFFAIRS WRITER

The California Supreme Court, raising the constitutional barrier between government and religion, on Monday prohibited organized prayers at public high school graduation ceremonies.

In a far-reaching decision issued on the eve of the graduation season, the high court held 5 to 2 that such invocations and benedictions effectively “convey a message” of governmental endorsement of religion, violating the U.S. Constitution.

“Freedom of religion flourishes only when government observes strict adherence to the principle of separation of religion and state authority,” Justice Joyce L. Kennard wrote in the plurality opinion. “Respect for the differing religious choices of the people of this country requires that government neither place its stamp of approval . . . nor appear to take a stand on any religious question.”

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The decision is likely to have broad impact. Prayer in public school classrooms has been banned under a U.S. Supreme Court ruling since 1962. But traditional invocations and benedictions at graduation ceremonies have endured as their legality remained unresolved. In California, an estimated three-fourths of the 1,000 school districts in the state include prayers or other religious messages at graduations.

The ruling reflected unusually wide division within the court on the emotionally and politically charged school-prayer issue. Six separate opinions totaling 157 pages were issued by the justices.

Kennard, joined by Justices Stanley Mosk and Allen E. Broussard, concluded that graduation prayer violated both the federal and state constitutional bans on government establishment of religion. Chief Justice Malcolm M. Lucas and Justice Armand Arabian reluctantly agreed that prayer conflicted with rulings by the U.S. Supreme Court--but did not reach the question of whether there was a state constitutional violation as well.

The dissenters--Justices Edward A. Panelli and Marvin R. Baxter--found no federal or state constitutional violation.

The fate of graduation prayer in California could be in the hands of the U.S. Supreme Court. The federal high court, in a separate case, is expected to rule early next year on whether graduation prayers are permissible under the federal Constitution.

If the nation’s high court strikes down such prayers, the California ruling will stand unscathed. But if the high court approves of such prayer, the California ruling would be open to attack. Although the prayer issue could be struck down again on separate, independent state constitutional grounds, Monday’s vote indicated that only three of the seven justices have concluded that prayer violates the state Constitution.

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Opponents of graduation prayer hailed the ruling. “This is a very important decision for what it says about separation of church and state,” said Carol A. Sobel of the American Civil Liberties Union of Southern California, attorney for two taxpayers who challenged the invocations. “This decision celebrates the pluralistic values of our democratic system.”

Douglas E. Mirell of Los Angeles, lawyer for the American Jewish Congress, welcomed the ruling and the fact that it came from a philosophically conservative high court. “We’re not talking about a Jerry Brown court, but a George Deukmejian court,” said Mirell, referring to the liberal court appointments of former Democratic Gov. Edmund G. Brown Jr. and the newer, more conservative nominees of former Republican Gov. Deukmejian.

Christian M. Keiner of Sacramento, attorney for the school district defending the prayers, said he was disappointed but hopeful the U.S. Supreme Court would reach a contrary decision on the issue. There will be no benedictions this year in California schools, Keiner noted, but a ruling upholding prayer by the federal court could reopen the way for their resumption in the state.

The case arose in the Morongo Unified School District in San Bernardino County, which for almost 50 years has permitted students to organize graduation ceremonies that include invocations and benedictions from local ministers, teachers or other guest speakers.

The prayers traditionally have been Christian in nature but non-demoninational, typically asking for divine blessing on the graduates. According to court papers, one such prayer, presented at Yucca High School in 1986 by a teacher, said in part: “Dear Father. . . . We ask Your guidance as these graduates try to meet the many challenges of their future years. Grant them the strength to meet these challenges with courage, confidence and faith.”

Two local taxpayers, James Sands and Jean Bertolette, backed by lawyers for the American Civil Liberties Union of Southern California, brought suit in 1986, contending the prayer violated provisions of the federal and state Constitutions barring the government establishment of religion.

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A San Bernardino Superior Court judge granted an order prohibiting such prayers in the district, but in the fall of 1989, a state Court of Appeal reversed the decision and upheld the constitutionality of the prayers. The appellate court, applying a three-part test established by the U.S. Supreme Court in 1971, held that the invocations were permissible because they did not have a primarily religious purpose; had only “remote and incidental” religious effect; and did not cause “excessive entanglement” between church and state.

The ACLU attorneys appealed the ruling to the state Supreme Court, presenting the court with its first major test of a church-state issue since conservatives emerged as a majority after the 1986 election defeat of Chief Justice Rose Elizabeth Bird and two other liberal justices.

In Monday’s ruling, Kennard’s plurality opinion concluded that graduation prayer not only violated the federal Constitution but state constitutional provisions she said mandated even stricter separation between church and state.

Lucas, in a lengthy concurrence, indicated that he had little choice but to agree there was a federal violation, but noted that with the federal high court about to take another look at the issue, the law “is in a state of flux.” Meanwhile, he said, “any resolution of the state constitutional issues will necessarily await another day.” Arabian, in a separate opinion, said he hoped the federal high court would permit some form of prayer at graduation ceremonies. Mosk, in a separate opinion, stressed what he saw as the strong state grounds for invalidating prayer.

Panelli and Baxter both issued strong dissents, with Panelli warning that the logic of the decision could force school officials to “censor a large part of our nation’s cultural heritage.”

The subdued invocations at issue in the case contrast sharply with songs such as “God Bless America” that ring with religious emotion, Panelli noted. “These songs have been sung at public school ceremonies for years,” the justice said. “Is it no longer permissible to ask the audience to stand and sing these or similar songs at high school commencement exercises?”

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BACKGROUND

At issue before the court was the constitutionality of long-traditional invocations and benedictions at public high school graduation ceremonies. Foes argued that invocations, like classroom prayers that have been prohibited since 1962, amounted to an official “establishment” or promotion of religion. They said prayer, no matter how seemingly innocuous, has no place at all in the public school system. Defenders of the benedictions argued that they were largely ceremonial, providing dignity to the occasion without improperly promoting religion. Such prayers were similar to the invocations before legislative sessions or other traditional practices that have been approved by the courts, defenders said.

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