1. Majority Opinion (5-4)
a. Yes, the prayer in this context violated the Establishment Clause. Writing for the majority, Justice Kennedy held that the state here effectively coerced students into participating in, or at least supporting, the prayers.
1. Why does Kennedy rule with the majority here when he dissented in the last case? Can’t there be reasonable accommodation? No. For Kennedy, there is an element of coercion here that simply was not present in County of Alleghany.
b. The school district had argued that attendance at the commencement ceremony was voluntary, in the sense that P could have received her diploma even without attending. But this argument ignored reality, Kennedy said; “To say each student has a real choice not to attend her high school graduation is formalistic in the extreme…. Everyone knows that in our society and in our culture high school graduation is one of life’s most significant occasions…. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation.”
c. Nor was it a defense that P was not required to specifically participate in the prayer – the combination of school supervision and peer pressure effectively required her to stand or at least maintain respectful silence, and this was tantamount to requiring her to participate in the religious exercise.
d. Finally, the fact that the prayer was non-sectarian was irrelevant; there is no such thing as an “official” or “civic” religion which, because it is non-sectarian, is exempt from the Establishment Clause. Even though the religion is non-sectarian, it still is a religion.
e. The high school principal argued that he acted in good faith in avoiding any state-religion issue, but this good faith argument is not a defense.
f. While he says he is not going to overturn Lemon, Kennedy applies his coercion test (pretty much ignoring Lemon, as Scalia points out).
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