Court Is Asked to Set Aside Its Graduation Prayer Ruling

State Atty. Gen. Daniel E. Lungren has asked the California Supreme Court to withdraw its ruling barring high school graduation prayer and reconsider the issue after the U.S. Supreme Court rules in a similar case next year.

An attorney for the American Civil Liberties Union of Southern California, which brought suit challenging the constitutionality of graduation prayer, said the group would oppose the move to set aside the state high court ruling.

In their decision May 6, the justices ruled 5 to 2 that invocations and benedictions at public high school graduation ceremonies violated the separation of church and state.

In a flurry of six widely divergent opinions, a plurality of three justices agreed that such prayers were barred under both the state and federal Constitutions, two found reluctantly that they were invalid under the federal Constitution, and two dissenters said there was no constitutional violation at all.

The net effect was to bar graduation prayers for now--but leave the way clear for the state court to uphold prayers if they later win approval by the federal high court.

Lungren, whose office was not a party in the case, said in a letter dated Tuesday that the May 6 decision, “with its various and widely differing views,” had left school districts without clear guidance on the prayer issue.

Withdrawing the ruling until the federal high court rules in a graduation-prayer case from Rhode Island would promote “judicial economy and efficiency,” he said. That decision is expected by June, 1992.

If the federal court invalidates prayer under the federal Constitution, the issue is resolved, the attorney general noted. If the federal court approves prayer, then the state court can re-examine whether prayer is permissible under the state Constitution.

Lungren did not take a position on the legality of graduation prayer itself. But the letter supported a petition for rehearing filed by Christian M. Keiner of Sacramento, attorney for the Morongo Unified School District in San Bernardino County, the defendant in the case before the California court.

Like Lungren, Keiner urged the justices to set aside their decision until the federal court acts next year. He said also that the ruling should be reconsidered because the justices had misinterpreted U.S. Supreme Court rulings on key issues in the case. In the meantime, he said, school districts are bound to follow the ruling until it is overturned.

Carol A. Sobel, an attorney for the ACLU, said Thursday she would file a brief next week urging the state court to deny a rehearing. “The court’s decision was carefully crafted and recognized what the current law compels,” she said. “There is no indication that the U.S. Supreme Court is going to change the law to invalidate this decision.”

Rehearings are granted only rarely by the justices and Sobel expressed doubt the court would agree to the request by Lungren and Keiner. “One might say their petition depends on a hope and a prayer,” she said.