Fighting the Establishment

"Congress shall make no law respecting an establishment of religion (the establishment clause), or prohibiting the free exercise thereof (the free exercise clause); or abridging the freedom of speech."


A high school graduate named Erica Corder recently made news when she had her diploma withheld because her valedictorian speech included the Christian gospel message. She had presented the speech to administrators before the graduation ceremony, but she omitted the evangelism because she knew that the school would not approve. Doubtlessly, Corder broke a reasonable school rule by changing her speech at the last minute, but the issue is that the school would not have approved the speech even if she had been honest about it. The school admitted this by insisting that she write in an apology email, "had I asked ahead of time, I would not have been allowed to say what I did." Apparently, her school was afraid that her speech would violate the establishment clause of the First Amendment. As one video blogger put it, "once the schools start pre-approving what [students] say, that's when the Establishment clause of the First Amendment becomes an issue."

Is allowance approval? Or, more to the point, is allowance establishment? If it is, then our government has also established anti-Semitic (National Socialist Party of America v. Village of Skokie)Nazi parades, established cross-burnings (R.A.V. v. City of St. Paul), and established types of child pornography (Ashcroft v. Free Speech Coalition). By these standards, having the government "establish religion" in Corder's high-school auditorium seems pretty tame. Or, maybe allowance is not the same as establishment (by any definition of either term).

This does not give religion free reign in the government (or government free reign in religion). The Supreme Court has found some limits on religious speech based on the establishment clause. In Abington Township School District v. Schempp the court argued strongly that the establishment clause demands a completely neutral stance on religion. The court even argued the case from the perspective of the free exercise clause, saying, "a further reason for neutrality is found in the free exercise clause, which recognizes . . . the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state." The court found that state-initiated religious activities, such as incorporating religion and prayer into curricula, were such a "compulsion." In the more recent case Lee v. Weisman, the court ruled specifically that schools could not have a prayer in graduations. It is important to note that the possible offensiveness of religious speech has little to do with the Supreme Court's rulings. In Lee, Justice Kennedy writes, "People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation." The violation, according to Kennedy, lies in the fact that the students were compelled to go to this government function and hear the prayer. But all of these restrictions (like everything else in the First Amendment) are on the government, not on people like Corder.

The Supreme Court has also clarified when religious speech is allowed. In the case Westside School District v. Mergens, the court decided that Christian clubs should be allowed to meet in school after hours, as other clubs were allowed to. The court did make it clear, however, that "faculty monitors may not participate in any religious meetings." Widmar v. Vincent, an earlier case, made a similar ruling for public universities. And, as an appeals court aptly explained in Chandle v. Siegelman, prayer is allowed when it "is genuinely student-initiated, and not the product of any school policy which actively or surreptitiously encourages it."

As far as the public is concerned, there is no legal difference between religious speech and any other type of speech. The only Constitutional limits are on the government. The only remaining question is whether or not a valedictory speech counts as government sponsored speech (as I already noted, the fact that the speech is allowed does not mean that it is necessarily a government establishment). Public expectations for a valedictorian speech is that it be the valedictorian's, and no one else's. There is a certain expectation of autonomy in the creation of graduation speeches. So, no real blame of content or authorship should be legally placed on the government when they allow the valedictorian to speak their mind, even if it is pre-approved. Thus, Corder's school was wrong for not allowing religious topics in her graduation speech.


Why I Ignored the Lemon Test

Anyone familiar with this Constitutional issue will probably wonder why I completely ignored the Lemon Test in my argument. Here is why:

The Lemon Test was created in Lemon v. Kurtzman. To declare a statute unconstitutional, the court must find the following: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion. Finally, the statute must not foster 'an excessive government entanglement with religion.'" The terms of the test are so vague (how do we quantify "primary effect" and what is "excessive government entanglement?") that I found it more useful to describe cases according to how the justices differed in their application of the test rather than saying, over and over, that the justices simply applied it.