SANDS v. MORONGO UNIFIED SCHOOL DISTRICT

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Court of Appeal, Fourth District, Division 2, California.

James SANDS, et al., Plaintiffs and Respondents, v. MORONGO UNIFIED SCHOOL DISTRICT, et al., Defendants and Appellants.

No. E005349.

Decided: September 19, 1989

Biddle & Hamilton, Christian M. Keiner and Terri A. DeMitchell, Sacramento, for defendants and appellants. The National Legal Foundation, Robert K. Skolrood, Douglas W. Davis, and William C. Wood, Jr., as amicus curiae on behalf of defendants and appellants. ACLU Foundation of Southern California, Carol A. Sobel, Mark D. Rosenbaum, and Paul L. Hoffman, Los Angeles, for plaintiffs and respondents.

OPINION

The Morongo Unified School District, its superintendent, and members of its governing board (collectively, School District) appeal from an injunction prohibiting the School District from including a religious invocation and benediction in high school graduation ceremonies.   On appeal, the School District contends that:  (1) plaintiffs lack standing to bring this lawsuit;  (2) the invocation and benediction do not violate the federal or state Constitution;  and (3) California statutory and case law and the free speech clauses of the First Amendment and the California Constitution protect the students' symbolic and ceremonial speech expressed in their graduation ceremony.

FACTUAL AND PROCEDURAL BACKGROUND

James Sands and Jean Bertolette (collectively, Plaintiffs) sued the School District for declaratory and injunctive relief, seeking to restrain the School District from including invocations and benedictions in public high school graduation ceremonies.   Plaintiffs and the School District filed separate motions for summary judgment or summary adjudication of issues.   Following full briefing and a hearing, the trial court entered a judgment prohibiting the School District from conducting religious invocations and benedictions at public school ceremonies.

The facts were essentially undisputed:  The individual Plaintiffs are taxpayers who reside within the School District.   The School District operates four high schools, each of which has traditionally included an invocation and benediction in its graduation ceremonies.   The invocations and benedictions typically included a prayer.

In 1985 at Yucca Valley High School (Yucca Valley), a Protestant minister delivered the invocation and a teacher 1 delivered the benediction.   In 1986 at Yucca Valley, a Protestant minister delivered the invocation 2 and a teacher delivered the benediction.3  The School District contended that the longstanding practice at Yucca Valley had been to permit the graduating class president, in consultation with the vice principal, to select the speakers to deliver the invocation and benediction.   The principal retained the right to make the final selection.   In 1986 the class president chose two faculty members for this purpose;  however, the superintendent of the School District advised the vice principal of Yucca Valley that the district wanted to have at least one minister included in the program.   Although the class president objected to the change, the vice principal then personally selected a Protestant minister to deliver the invocation.   The School District explained its action as an attempt to preserve the status quo during the pendency of this action.   The School District spent about $1,700 for the 1986 graduation ceremony to print programs and tickets and rent caps and gowns for participating faculty members.

In 1985 at Twenty–Nine Palms High School, a student committee selected a Protestant minister to deliver the invocation and a Catholic priest to deliver the benediction.   The same Protestant minister has delivered the benediction and invocation at Sky High School ever since its first graduation ceremony nine years ago.   In 1985 at Monument High School, a Protestant minister delivered both the invocation and benediction.   The record does not indicate how the speakers are selected for the Sky and Monument High School graduation ceremonies.

DISCUSSION

IStanding

 Plaintiffs brought this action under section 526a of the Code of Civil Procedure 4 as taxpayers who reside within the district.   This statute provides “ ‘a general citizen remedy for controlling illegal governmental activity.’  [Citations.]”  (Van Atta v. Scott (1980) 27 Cal.3d 424, 447, 166 Cal.Rptr. 149, 613 P.2d 210.)   The purpose of the statute is to “ ‘enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement.’  [Citation.]”  (Blair v. Pitchess (1971) 5 Cal.3d 258, 267–268, 96 Cal.Rptr. 42, 486 P.2d 1242.)   Courts construe the statute liberally to achieve its remedial purpose;  thus, taxpayers may sue even if the amount of the illegal expenditures is small, if the illegal procedures actually result in a saving, if paid governmental employees spend time performing illegal acts, or if governmental officials implement an unconstitutional statute.  (Id., at p. 268, 96 Cal.Rptr. 42, 486 P.2d 1242.)

The School District, citing Blair, contends that plaintiffs do not have sufficient stake in the issues to support standing.   The School District argues that plaintiffs have not shown a personal interest in the controversy because neither has children who attend school in the district.   Sands has attended only one high school graduation ceremony in the district and Bertolette has never attended any.

 The School District misconstrues Blair;  the court in Blair emphasized that the taxpayer who brings the lawsuit need not show individual damage.  “[I]t has never been the rule in this state that the parties in suits under section 526a must have a personal interest in the litigation.”   (Id., at p. 269, 96 Cal.Rptr. 42, 486 P.2d 1242.)   Plaintiffs, as taxpayers, have a statutory right to bring this suit.

Next, the School District argues that Plaintiffs have not shown that any identifiable funds were illegally spent.   The School District claims that speakers at its graduation ceremonies are not compensated.   However, admitted facts in the record establish that the School District spends public funds to print programs and provide security and that at Yucca Valley the vice principal spends time in the process of selecting the speakers to deliver the invocation and benediction.   Under Blair, supra, a taxpayer may establish standing if he shows that a governmental employee spent time performing acts challenged as illegal.   The trial court correctly determined that Plaintiffs have standing to bring this action.

II

Establishment Clause Challenge

Plaintiffs brought their suit under both the federal and state Constitutions.  “A graduation ceremony, as an administrative act, must comport with state and federal constitutional standards.  (Johnson v. Huntington Beach Union High Sch. Dist. (1977) 68 Cal.App.3d 1, 11 [137 Cal.Rptr. 43] [ ․].)”  (Bennett v. Livermore Unified School Dist. (1987) 193 Cal.App.3d 1012, 1016, 238 Cal.Rptr. 819.)

The First Amendment of the United States Constitution guarantees that “Congress shall make no law respecting an establishment of religion․”  (U.S. Const. amend I.)   The 14th Amendment extends this restriction to the states.  (Everson v. Board of Education of Ewing Tp. (1947) 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711.)   In provisions not dependent on the federal Constitution (Cal. Const., art. I, § 24;  Okrand v. City of Los Angeles (1989) 207 Cal.App.3d 566, 571, 254 Cal.Rptr. 913), California's Constitution also provides:  “The Legislature shall make no law respecting an establishment of religion.”  (Cal. Const., art. I, § 4.) 5

The establishment clause means that:  “ ‘Neither a state nor the Federal Government can set up a church.   Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.’ ”  (County of Allegheny v. American Civil Liberties Union (1989) 492 U.S. 573, ––––, 109 S.Ct. 3086, 3100, 106 L.Ed.2d 472 quoting Everson, supra, 330 U.S. at pp. 15–16, 67 S.Ct. at pp. 511–512.)   However, the establishment clause does not require that “in every and all respects there shall be a ‘wall’ and complete separation of church and state (Zorach v. Clauson, 343 U.S. 306, 312 [96 L.Ed. 954, 961, 72 S.Ct. 679, 683] ).”  (Citizens for Parental Rights v. San Mateo County Bd. of Education (1975) 51 Cal.App.3d 1, 20, 124 Cal.Rptr. 68, fn. omitted.)   Rather, “the ‘line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.’  [Citations.]”   (California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 599, 116 Cal.Rptr. 361, 526 P.2d 513.)

Courts have ruled that the establishment clause does not prohibit opening legislative sessions with a religious invocation.   In Marsh v. Chambers (1983) 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019, the United States Supreme Court held that Nebraska's practice of opening legislative sessions with a prayer delivered by a chaplain paid by the state was constitutional.  (See also Bogen v. Doty (8th Cir.1979) 598 F.2d 1110 and Lincoln v. Page (1968) 109 N.H. 30, 241 A.2d 799 [practice of opening town meetings and county board meetings with prayer led by volunteer clergy does not violate establishment clause].)  At first blush, these cases would seem conclusive of the issue;  however, establishment clause issues do not lend themselves to facile resolution.

Rather, the Supreme 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.  [Citations.]”  (Edwards v. Aguillard (1987) 482 U.S. 578, 583–584, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510.)   Thus, the Supreme Court has consistently struck down statutes which authorized regular or daily religious practices in public schools.   For instance, in Wallace v. Jaffree (1985) 472 U.S. 38, 60, 105 S.Ct. 2479, 2491, 86 L.Ed.2d 29, the court held unconstitutional an Alabama statute which authorized a daily moment of silence in public schools.   In Stone v. Graham (1980) 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199, the court invalidated a Kentucky statute which required the posting of the Ten Commandments in public school classrooms.   In Abington School District v. Schempp (1963) 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844, the court held unconstitutional a requirement that the Bible be read or the Lord's Prayer recited in public school classrooms.   Likewise, in Engel v. Vitale (1962) 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601, the court struck down a New York requirement that an official state prayer be recited in the public schools.

However, the Supreme Court has not yet considered the constitutionality of religious invocations and benedictions at public high school graduation ceremonies.   In the only reported California decision on point, the court held that the inclusion of a religious invocation in high school graduation ceremonies violates both the state and the federal Constitutions because its primary purpose is religious, it conveys a message of endorsement of the particular creed represented in the invocation and of religion in general, and it fosters governmental entanglement in religion because the school district is required to oversee the students' choice of ceremony.   (Bennett, supra, 193 Cal.App.3d at p. 1020, 238 Cal.Rptr. 819.)   For the reasons set forth below, we disagree with the analysis and conclusions of the Bennett court.

Other federal and state courts which have considered the issue have split both as to reasoning and results.   A number of these courts have ruled that some form of religious invocation and benediction are constitutionally permissible.   See, e.g., Stein v. Plainwell Community Schools (6th Cir.1987) 822 F.2d 1406, 1409 (nonsecular invocations and benedictions at high school graduation ceremonies are constitutionally valid);  Brandon v. Board of Ed. of Guilderland Cent. Sch. (2d Cir.1980) 635 F.2d 971, 979 (observed in dictum that “where a clergyman briefly appears at a yearly high school graduation ceremony, no image of official state approval is created.”);  Grossberg v. Deusebio (E.D.Va.1974) 380 F.Supp. 285, 288 (brief invocation and benediction in the primarily secular graduation ceremonies do not violate the federal Constitution);  Wiest v. Mt. Lebanon School District (1974) 457 Pa. 166, 320 A.2d 362, 365–366 (invocation and benediction in high school graduation ceremonies permissible because attendance at ceremonies was voluntary and occasion was ceremonial, not part of the day-to-day routine of school curriculum);  and Wood v. Mt. Lebanon Township School District (W.D.Pa.1972) 342 F.Supp. 1293 (challenge to practice of including invocation and benediction in high school graduation ceremonies dismissed on procedural ground;  dictum that practice did not violate the establishment clause when attendance was voluntary).

Other courts have found graduation invocations unconstitutional.  (See, e.g., Kay v. David Douglas Sch. Dist. No. 40 (1986) 79 Or.App. 384, 719 P.2d 875, 880, reversed on other grounds, 303 Or. 574, 738 P.2d 1389 [school district's policy directing high schools to include a religious invocation in graduation ceremonies violated state constitution];  Graham v. Central Community Sch. Dist. of Decatur (S.D.Iowa 1985) 608 F.Supp. 531, 535 [school district's inclusion of a religious invocation and benediction in its graduation ceremonies violates establishment clause because they serve a Christian religious purpose rather than a secular purpose and because prayer is inherently a religious activity].)

In a related context, courts have consistently struck down the practice of opening regular school assemblies and athletic events with prayer.   In Jager v. Douglas County School Dist. (11th Cir.1989) 862 F.2d 824, the court held that a school district's practice of having clergy give invocations before public high school football games violated the federal Constitution.   The practice had the primary effect of advancing religion and conveyed the message that the school district endorsed the religious invocations;  it was constitutionally irrelevant that attendance at the events was voluntary.   In Doe v. Aldine Independent School Dist. (S.D.Tex.1982) 563 F.Supp. 883, the court held that the policy of reciting or singing a school prayer at occasional school activities violated the establishment clause.   The school district could not advance a secular purpose through religious means, and voluntariness is not relevant to a first amendment inquiry.  (Id., at pp. 886–887.)   In Collins v. Chandler Unified School Dist. (9th Cir.1981) 644 F.2d 759, the court invalidated the practice of permitting students to recite prayers and bible verses of their choosing before occasional voluntary school assemblies.   The court held that the practice had no secular purpose, and like the Jager and Doe courts, ruled that the voluntary nature of the assemblies was irrelevant under the establishment clause.  (Id., at p. 762.)

 Lemon Test.   In analyzing establishment clause issues, courts use the three-part test the Supreme Court articulated in Lemon v. Kurtzman (1971) 403 U.S. 602, 615, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 to guide their analysis.   This test requires that to be constitutionally valid, the challenged practice must have a secular rather than religious purpose, its primary effect must neither advance nor inhibit religion, and it must not lead to excessive governmental involvement.   If the state action fails to meet any part of the test, it violates the Establishment Clause.  (Edwards, supra, 482 U.S. at p. 582, 107 S.Ct. at p. 2576.)   California courts likewise apply the Lemon test in analyzing establishment clause issues.  (Bennett, supra, 193 Cal.App.3d at p. 1020, 238 Cal.Rptr. 819;  Johnson, supra, 68 Cal.App.3d at p. 11, 137 Cal.Rptr. 43.)

The School District suggests that in this case, we should not follow Lemon, but should apply the principles set forth in Marsh.  (See, e.g., Stein, supra, 822 F.2d at pp. 1408–1409, applying Marsh analysis in challenge to graduation invocation.)   In Marsh, the Supreme Court looked to the “unique history” associated with the practice of opening legislative sessions with prayer.   The court noted that the practice existed at the time the First Amendment was adopted and has continued in may states to the present.   Thus, the court explained, the drafters of the Establishment Clause undoubtedly perceived no threat from legislative prayer and did not intend to prohibit legislative invocations.  (Marsh, supra, 463 U.S. at pp. 791–792, 103 S.Ct. at pp. 3335–3336.)

Nonetheless, the Lemon test “has been applied in all cases since its adoption in 1971, except in [Marsh, supra.]․  The Court based its conclusion in that case on the historical acceptance of the practice.   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.  [Citations.]”   (Edwards, supra, 482 U.S. at p. 583, fn. 4, 107 S.Ct. at p. 2577, fn. 4.)  In its most recent ruling on an establishment clause issue, a majority of the Court reaffirmed that the Lemon test continues to guide establishment clause analysis.  (County of Allegheny, supra, 492 U.S. at p. ––––, 109 S.Ct. at p. 3099.)   We therefore apply the Lemon test in this case.

Secular Purpose.   Under the first prong of the Lemon test, we examine whether the challenged practice has a legitimate secular purpose.   In Bennett, the court concluded that this first prong was not met because “There is no question but that the primary purpose of a religious invocation is religious.”  (Bennett, supra, 193 Cal.App.3d at p. 1020, 238 Cal.Rptr. 819.)

 We disagree with the Bennett court's conclusion that if we accept the premise that prayer is religious by nature, our inquiry ends.   The Supreme Court has recognized that to “[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation․”  (Lynch v. Donnelly (1984) 465 U.S. 668, 680, 104 S.Ct. 1355, 1362, 79 L.Ed.2d 604.)   Plaintiffs contend that government may not employ religious means to serve secular interests unless it is clearly demonstrated that nonreligious means will not suffice.  (See Abington, supra, 374 U.S. at p. 265, 83 S.Ct. at p. 1594, Brennan, J., concurring.)   However, a majority of the Supreme Court has rejected this suggestion.  (Lynch, supra, 465 U.S. at p. 681, fn. 7, 104 S.Ct. at p. 1363, fn. 7.)   Thus, the controlling issue is not whether the challenged conduct is religious in nature, but whether the religious activity is being used for a secular purpose;  the government need not have an exclusively secular purpose.  (Id., at p. 681, fn. 6, 104 S.Ct. at p. 1363, fn. 6.)

The purpose of the graduation ceremony itself is wholly secular.   The school district contends that the invocation sets a formal or solemn tone for the ceremony.   We view the purpose of opening and closing that ceremony with an invocation and benediction in the context of the ceremony's secular purpose.   (County of Allegheny, supra, 492 U.S. at p. ––––, 109 S.Ct. at p. 3102.)

 Courts have recognized that government acknowledgments of religion, including legislative invocations, have 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 p. 693, 104 S.Ct. at p. 1369, O'Connor, J. concurring.)   Likewise, in Bogen, supra, 598 F.2d 1110, the court held that the practice of opening county board meetings with an invocation delivered by a volunteer clergyman reflected a clearly secular purpose:  “It is directed toward establishing a solemn atmosphere and serious tone for the board meetings.”  (Id., at p. 1113.)   We conclude that, in context, the invocation adds a note of dignity and decorum to the ceremony and serves to focus the audience's attention.   This legitimate secular purpose satisfies the first prong of the Lemon test.

Primary Effect.   Under the second prong of the Lemon test, we determine whether the primary effect of the challenged action either advances or inhibits religion.   This prong looks to whether the challenged practice “endorses” religion.  (County of Allegheny, supra, 492 U.S. at p. ––––, 109 S.Ct. at p. 3102.)   The essential principle is that “[t]he Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from ‘making adherence to a religion relevant in any way to a person's standing in the political community.’  [Citation.]” (Id. at p. ––––, 109 S.Ct. at p. 3100.)

The Bennett court concluded that the practice of including a religious invocation in a graduation ceremony fails the second prong of the Lemon test.   The court explained that the practice “conveys a message of endorsement of the particular creed represented in the invocation, and of religion in general.”  (Bennett, supra, 193 Cal.App.3d at p. 1020, 238 Cal.Rptr. 819.)   Again, we disagree with the Bennett court's analysis.

“ ‘[N]ot every law that confers an “indirect,” “remote,” or “incidental” benefit upon [religion] is, for that reason alone, constitutionally invalid.’  [Citations.]”  (Lynch, supra, 465 U.S. at p. 683, 104 S.Ct. at p. 1364;  accord, California Educational Facilities Authority, supra, 12 Cal.3d at p. 600, 116 Cal.Rptr. 361, 526 P.2d 513.)   In Lynch, the Supreme Court held that to find that a challenged practice advances religion, the court must find that the activity is more beneficial to religion than other common governmental practices, such as “expenditure of large sums of public money for textbooks supplied throughout the country to students attending church-sponsored schools [citation];  expenditure of public funds for transportation of students to church-sponsored schools [citation];  federal grants for college buildings of church-sponsored institutions of higher education combining secular and religious education [citation];  noncategorical grants to church-sponsored colleges and universities [citation];  and the tax exemptions for church properties․   It would also require that we view it as more of an endorsement of religion than the Sunday Closing Laws ․;   the release time program for religious training ․;   and the legislative prayers upheld in [Marsh ].”  (Lynch, supra, 465 U.S. at pp. 681–682, 104 S.Ct. at pp. 1363–1364, fn. omitted;  accord, Okrand, supra, 207 Cal.App.3d at pp. 574–575, 254 Cal.Rptr. 913.)

The test applied in evaluating the “primary effect” prong is that “ ‘Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.’ ”  (California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 601, 116 Cal.Rptr. 361, 526 P.2d 513, quoting Hunt v. McNair (1973) 413 U.S. 734, 743, 93 S.Ct. 2868, 2874, 37 L.Ed.2d 923.)

In addition, we must draw the line at any activity which endorses a particular doctrine.   In Marsh, the Supreme Court noted that the legislative prayers did not violate this principle because the chaplain had “removed all references to Christ․”  (Marsh, supra, 463 U.S. at p. 793, fn. 14, 103 S.Ct. at p. 3337, fn. 14.)   The court in Stein held that graduation invocations are valid if they preserve “the principle of equal liberty of conscience” and do not “go beyond ‘the American civil religion’ ” (Stein, supra, 822 F.2d at p. 1409.)   However, the Stein court ruled that invocations and benedictions which are “framed and phrased so that they ‘symbolically place the government's seal of approval on one religious view’—the Christian view” were impermissible.   The challenged invocations, which “employ[ed] the language of Christian theology and prayer” are not the “ ‘civil’ invocations or benedictions used in public legislative and judicial sessions as described in Marsh.”  (Id., at p. 1410.)

 In conducting our analysis of the primary effect of the invocation and benediction, we adopt the reasoning of the court in Grossberg, supra, 380 F.Supp. at p. 288.   The Grossberg court acknowledged that “An ‘invocation’ is a prayer, and it is hard to conceive the purpose or effect of allowing a prayer being anything other than the advancement of religion.”   Nonetheless, because the graduation invocation did not occur in a “repetitive or pedagogical” context, and was not part of a program of “calculated indoctrination,” but rather was a brief and peripheral part of a ceremonial function, the court concluded that the practice was constitutional.  (Id., at pp. 288–289.)   Likewise, in Bogen, supra, 598 F.2d at p. 1114, the court held that the primary effect of the practice of opening county board meetings with an invocation was to establish order and set a solemn tone for the meetings.   We conclude that the religious effect of the invocation and benediction is remote and incidental, even if the reason or effect of the invocation “ ‘merely happens to coincide or harmonize with the tenets of some ․ religions.’ ”  (Lynch, supra, 465 U.S. at p. 682, 104 S.Ct. at p. 1364.)   We find that the second prong of the Lemon test is satisfied.

Entanglement.  Finally, under Lemon, we consider whether the state action will foster an excessive entanglement with religion.   The Bennett court concluded that a religious invocation fails this third prong because the school district would have to oversee the students' choice of ceremony to ensure that the court's limits were not exceeded if the court were to permit some forms of religious invocation.  (Bennett, supra, 193 Cal.App.3d at p. 1020, 238 Cal.Rptr. 819.   Again, we disagree with the Bennett court's analysis.

The Supreme Court recognizes that absolute separation between church and state is impossible;  it is inevitable that government and religious organizations will have some relationship.  (Lemon, supra, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745.)   Thus, only excessive governmental entanglement with religious organizations invokes a constitutional attack.  (California Sch. Employees Assn. v. Sequioa Union High Sch. Dist. (1977) 67 Cal.App.3d 157, 161, 136 Cal.Rptr. 594.)

 First Amendment entanglement analysis is concerned with procedural matters;  if the state must engage in continuing administrative supervision of a religious activity, then church and state are excessively intertwined.   The court also must consider the potential for political divisiveness.  (Lemon, supra, 403 U.S. at pp. 622–623, 91 S.Ct. at pp. 2115–2116;  Feminist Women's Health Center, Inc. v. Philibosian (1984) 157 Cal.App.3d 1076, 1091, 203 Cal.Rptr. 918.)

In Aguilar v. Felton (1985) 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290, the court considered a challenge to a program that provided classes to nonpublic school students at public expense in classrooms located in nonpublic schools.   The court found that two critical elements of the Lemon entanglement prong were present.   First, state aid was provided in a pervasively sectarian environment;  second, ongoing supervision was necessary to prevent religious messages in the classroom.  (See id., at pp. 412–413, 105 S.Ct. at pp. 3237–3238.)   The court also found the danger of political divisiveness along religious lines because public employees had to make numerous judgments on subtle and controversial matters of religious significance.  (Id., at p. 414, 105 S.Ct. at p. 3238.)

 Here, none of these dangers is present.   The School District does not fund the invocation and benediction, and the graduation ceremony takes place in a public setting, not in a parochial school.   Finally, an invocation is not a daily part of the educational process;  no continuing state supervision is required.   We emphasize that we find only nonsectarian invocations and benedictions constitutional.  (Marsh, supra, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019;  Stein, supra, 822 F.2d at p. 1410.)   Thus, our holding eliminates the possibility of sectarian disputes which troubled the court in Johnson, supra, 68 Cal.App.3d at p. 14, 137 Cal.Rptr. 43 (possibility of divisiveness along religious lines if court approved permitting religious student groups to meet on high school campus).   We conclude that the practice of including a nonsectarian invocation and benediction will not foster excessive entanglement.

III

Other Provisions of California Constitution

Plaintiffs contend that even if the invocation and benediction do not violate the establishment clause, they are nonetheless impermissible under other provisions of the California Constitution which do not derive from or mirror any part of the federal Constitution.

Article XVI, Section 5.   The California Constitution states:  “Neither the Legislature, nor any ․ school district, ․ shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose․”  (Cal. Const., art. XVI, § 5.)   This provision “ ‘was intended to insure the separation of church and state and to guarantee that the power, authority and financial resources of the government shall never be devoted to the advancement or support of religious or sectarian purposes.’  [Citation.]   The prohibited aid under this section includes aid ‘in the intangible form of prestige and power.’  [Citation.]”  (Feminist Women's Health Center, supra, 157 Cal.App.3d at p. 1093, 203 Cal.Rptr. 918.)

 Article XVI, section 5 “forbids more than the appropriation or payment of public funds to support sectarian institutions.   It bans any official involvement, whatever its form, which has the direct, immediate, and substantial effect of promoting religious purposes.”  (California Educational Facilities Authority, supra, 12 Cal.3d at p. 605, fn. 12, 116 Cal.Rptr. 361, 526 P.2d 513, emphasis added.)   As we discussed above in our analysis of the primary effect of the invocation and benediction, any aid to religion was merely incidental.   For the same reasons, we conclude that the invocations and benedictions do not have the substantial effect of promoting religious purposes and are therefore valid under article XVI, section 5.

Article IX, Section 8.   Finally, the California Constitution provides:  “[No] sectarian or denominational doctrine [shall] be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State.”  (Cal. Const., art. IX, § 8.)

 In California Educational Facilities Authority, supra, respondent charged that time spent by public officials who serve on without compensation on a program which administered construction funds for public and private colleges constituted an appropriation in violation of article IX, section 8, insofar as their public salaries benefited the private institutions assisted by the Authority.   The court found the contention meritless, explaining, “Many other officials on the public payroll have occasion to spend some portion of their working time processing applications by sectarian schools, relating to such matters as incorporation, tax exemption, zoning, health and safety inspections, building permits, and parking regulations;  and, of course, fire and police protection is provided personnel and property of private as well as public institutions.   Such indirect and incidental ‘benefits' do not violate article IX, section 8.  [Citations.]”  (California Educational Facilities Authority, supra, 12 Cal.3d at p. 604, 116 Cal.Rptr. 361, 526 P.2d 513.)   Likewise, in this case, the incidental involvement of faculty members in planning the graduation ceremonies does not violate this provision.

Students' Free Speech Rights.   The School District asserts that the students' selection of graduation speakers is protected under the free speech clause of the First Amendment and under the state constitution and statutes.   Because we conclude that other provisions of the state and federal Constitutions permit the challenged practice, we need not address this argument.

DISPOSITION

The judgment is reversed.

I concur.

The author of the lead opinion has flawlessly marshalled applicable precedents to demonstrate the absurdity of a legal conclusion that the recitation of a blandly theistic invocation at a high school commencement exercise represents violation of the constitutional pronouncement that “Congress shall make no law respecting an establishment of religion, ․” (U.S. Const., Amend. I, emphasis added).

In Johnson v. Huntington Beach Union High Sch. Dist., 68 Cal.App.3d 1, 137 Cal.Rptr. 43, I wrote a dissent in which, in the first instance, an attempt was made to rely upon applicable precedents, mainly Zorach v. Clauson, supra, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954, and California Educational Facilities Authority v. Priest, supra, 12 Cal.3d 593, 116 Cal.Rptr. 361, 526 P.2d 513, to demonstrate that the school district's allowing a group of students, voluntarily, to attend an Edison High School hobby club meeting, the purpose of which was to discuss the Bible, likewise was not a violation of the establishment clause.

In the next instance, I undertook to show that to deny recognition of the students' Bible-study club impinged on their constitutional rights secured to them under the free-expression clause of the First Amendment, as well as the equal protection clause of the Fourteenth Amendment.

Finally, and, in my view, most importantly, I called for a new look at the perspective from which cases of this kind have long been judged.   Just as Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, represented the triumph of the realization that “separate but equal” yet represented a denial of equal protection, I earnestly entreat any who will listen that the crisis of irresponsibility now threatening to engulf the nation in anarchy can be laid in part at the door of a wholly distorted view of the establishment clause which a century of well intentioned but misguided decisions has spawned.

To give substance to this entreaty, I can do naught but say again what I said in Johnson.  “It remains to give vent to what has increasingly troubled me about the trend of the decisions purporting to construe and apply the establishment clause.   It is certainly not because of any arrogant delusions of Delphic prescience that I voice the lament which follows, but rather because I have long been awaiting this chance to express a deep concern which hopefully will fall upon interested ears and then be equally shared.   What follows is a plea similar to that made by those valiant and persistent heroes 6 of almost 25 years ago, a plea which led to their triumph in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 38 A.L.R.2d 1180.   By that I mean to imply that constitutional pronouncements have no claim to immortality.   Times change and previously obscured wisdom emerges.   In Brown, the United States Supreme Court was finally persuaded by essentially sociological and psychological wisdom which had at last gained widespread acceptance among our citizenry that the ‘separate but equal’ facilities doctrine as applied to schools for children of minority birth was untenable against the admonition of the Fourteenth Amendment that all persons shall enjoy equal protection of the laws.

“In an analogous mode, I see the necessity for a re-evaluation of the cases construing the establishment clause.   With due respect for the sincerity of those who have authored the cases relied upon by the majority, it seems to me that their sweeping interpretations of the simple phrase that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof․”  (U.S. Const., Amend. I) have distorted all out of rational proportion both what the framers of the Constitution intended and what is fundamental to the survival of an ethical society.   To give meaning and substance to this call for a change in the trend of the cases, I have chosen to quote extensively from an essay written by Frank Goble [fn. omitted] for dissemination by the Thomas Jefferson Research Center of Pasadena, California.7

“The essay, as a kind of text to build on, sets forth the following thought:  ‘When a society is perishing, the true advice to give to those who would restore it is to recall it to the principles from which it sprung.’   Mr. Goble then proceeds.

“ ‘Russell Kirk is the author of a magnificent volume entitled “The Roots of American Order.”   It ought to be required reading in our schools and for everyone concerned about our society.   The book traces the ideas from Egypt, Greece, Italy (Rome), Europe and other nations that became, in the creative minds of the Founding Fathers, the basis for the most successful society in history.

“ ‘ “Upon the classical and theological virtues,” writes Dr. Kirk, “upon the social experience of the old world and the new, there was built by self-sacrifice and high imagination the intricate structure of personal and public order.   Although no single human mind planned this order of ours, the wisdom and the toil of countless men and women have gone into its making.”

“ ‘It seems obvious [despite this] that something is seriously wrong ․  [A]t a time when we are spending more than ever on education, we see proliferating strikes by teachers, increasing violence and vandalism, and high school “graduates” who are functionally illiterate.  [O]n every level, our society is witnessing an alarming increase in irresponsible behavior.

“ ‘Systems, social or mechanical, function when the various parts are in order.   Your auto mechanic, if he is a good one, knows why your car works.   He has a mental image of a well-functioning automobile.   But when your car doesn't operate, you don't want the mechanic to tell you about a well-functioning car, you want him to find out what's wrong and repair it.

“ ‘The same reasoning can be applied to our society.   We need to understand the fundamental ideas that made our society great—Dr. Kirk has given us an excellent explanation of this.   Then, if we are to recover our greatness, we must identify what has gone wrong and correct it.   Thus, the urgent question becomes, what are the roots of American Disorder?   WHAT IS WRONG?

“ ‘․ It is our opinion ․ that a basic cause for our society's exploding problems is personal and organizational irresponsibility.   Irresponsibility is a social disease that, if left untreated, destroys individuals, families, communities, and nations.   The world is littered with the ruins of societies destroyed by irresponsibility․

“ ‘What causes irresponsible human behavior?   Moral ignorance!   Why is moral ignorance increasing in a society which is spending more for education each year and more on education as a percentage of its total production than any other society in history?   Walter Lippmann explained it quite succinctly years ago when he said, “During the past 40 or 50 years, those who are responsible for education have progressively removed from the curriculum of studies, the Western culture which produced the modern democratic state.   The schools and colleges have, therefore, been sending out into the world, men who no longer understand the creative principles of the society in which they must live.   The prevailing education is destined, if it continues, to destroy Western civilization and is, in fact, destroying it.”

“ ‘There is more than enough evidence to prove that American education at all levels has indeed placed less and less emphasis on the cultural principles that provided the foundation for our national success.   Dr. Benjamin D. Wood, former Director of the Bureau of Collegiate Education Research at Columbia University described it as, “The lamentable disengagement of American education from its indispensable role in the moral, ethical realm which arose from a grieviously [sic] erroneous interpretation of the wise separation of church and state, which error in turn grew out of an older and unfortunately still widely-accepted error of confusing morality and ethics with one or another specific ecclesiastical affiliations.”  ․

“ ‘John Nietz did a study of old textbooks and found that originally moral education was one of the principal objectives of our schools.   According to Mr. Nietz, before 1775, religion and morals accounted for over 90 percent of the content of school readers.   By 1926, this was down to 6 percent, and it is doubtless far less today, perhaps too small to be measured.

“ ‘Mr. Nietz says that to understand the decline of moral values and the rise in vandalism and crime we need only to contrast the content of the McGuffey readers (first published in 1836–57) with the “literature” inflicted on children today.

“ ‘Mr. Nietz says about the McGuffey readers:  “Such moral qualities as honesty, truth and truthfulness, obedience, temperance, kindness to humans and animals, thrift, work and patriotism were largely taught by means of actual human and situational stories․   It has been recognized by students of history that the lessons in the McGuffey readers did much to set the standards of morality and of the social life in the pioneering West for more than half a century.   Many of the truths and poetic expressions memorized from these readers were quoted by parents, preachers and others to counter acts of intemperance, vulgarity, laziness, brutality, dishonesty and lawlessness, which were altogether too common among frontier people ․   Many distinguished Americans who were reared west of the Appalachians ․ have acknowledged the deep debt they owe to the lessons learned from these readers.”  ․

“ ‘I could give many other examples to show that there has been a very substantial decline in educational emphasis on the moral and ethical concepts that provided the basis for American order.   Educators have not merely de-emphasized our cultural heritage, in many cases they have taught that it is obsolete—some suggest that it was never valid․

“ ‘If moral principles form the roots for American order, then moral relativism (the denial of moral principles) must form the roots of disorder.   If this is the situation, how did it occur?   How and why did our educational system shift from an emphasis on moral principles to an avoidance or even denial of principles?  (In defense of our educational system it should be pointed out that most Americans have permitted, or at least have not often objected to, this trend.)

“ ‘The answer, I am convinced, lies in an understanding of the behavioral sciences and their steadily increasing influence since about 1870.   Dr. Willis Harman, former Director of one of the U.S. Office of Education's Educational Policy Research Centers, concurs.  “The religious tenets which form the undergirding of the values of the society,” he states, “as well as for the overarching national purpose, reeled under the successive blows of the paleontologists, the evolutionists, psychoanalysts, and the positivistic behavioral scientists.   By a half century ago or so they had been eroded away to such an extent that the society's value structure was, as it were, left hanging without support.”

“ ‘Abraham Maslow identified the behavioral sciences as playing a major role—perhaps the major role—in causing the declining emphasis on moral principles and individual responsibility in our schools.

“ ‘ “The ultimate disease of our time is valuelessness,” he stated, “․ this state is more crucially dangerous than ever before in history ․   It becomes more and more clear that the study of crippled, stunted, immature, and unhealthy specimens can yield only a crippled psychology and a crippled philosophy.   The study of self-actualizing people must be the basis for a more universal science of psychology.”  ․

“ ‘A society cannot continue to exist without a workable system of values.   “Moral decay,” writes Charles Brough, in the Cycle of Civilization, “has generally been a characteristic facet of every declining civilization.”

“ ‘One of the most widely read history books of all times is The Decline and Fall of the Roman Empire written in 1788 by Edward Gibbons.   He set forth five basic reasons why that great civilization withered and died.   These were:

“ ‘The undermining of the dignity and sanctity of the home which is the basis for human society.

“ ‘Higher and higher taxes;  the spending of public money for free bread and circuses for the populace.

“ ‘The mad craze for pleasure;  sports becoming every year more exciting, more brutal, more immoral.

“ ‘The building of great armaments when the real enemy was within—the decay of individual responsibility.

“ ‘The decay of religion;  faith fading into mere form, losing touch with life, losing power to guide the people.

“ ‘ “In studying the breakdowns of civilizations,” states Arnold Toynbee, “we found that the cause was, in every case, some failure of self-determination, and that, when human beings thus lost control over their own destinies, this social disaster usually turned out to have been the consequence of a moral aberration.”   At another time Toynbee wrote, “I do not believe that civilizations are fated to break down, or that they have a fixed maximum life span ․   I do not believe either that civilizations break down through being worsted by their environment.   I believe that, when they do break down, the cause is, not some blow from outside, but some inward spiritual failure—some kind of demoralization to which we human beings are not bound to succumb and for which we ourselves therefore bear the responsibility․”

“ ‘The roots of American disorder can be found in our institutions of education in the social and behavioral disciplines.   The dominant theories here have been inconsistent with and sometimes antagonistic to our traditions and tend to discourage individual responsibility․’ [from:  The Roots of American Order, by Dr. Russell Kirk, as quoted in the Frank Goble essay.]

“To what has been quoted, particularly, ‘ “[t]he lamentable disengagement of American education from its indispensable role in the moral, ethical realm which arose from a grieviously [sic] erroneous interpretation [italics in original] of the wise separation of church and state ․ grew out of an older and unfortunately still widely-accepted error of confusing morality and ethics with one or another specific ecclesiastical affiliations,” ’ I would add [to what Dr. Kirk said] that the ‘lamentable disengagement’ noted has been aided and abetted every step of the way by a persistent and increasingly portentous rhetoric in the decisions of the United States Supreme Court whose authors fail to perceive the difference on the one hand between the prohibitions against the establishment of a state religion (which is all of an affirmative nature that the establishment clause was really ever intended to prohibit ) 8 and [,] on the other[,] the countenancing of school teachers teaching theological, ethical, and moral concepts from all possible points of persuasion.   What this has led to is a tyranny of the minority.   The many teachers who share the views of Mr. Goble as above expressed are afraid to voice them, while those teachers who discount the moral and ethical foundations of our national heritage are free in the classroom to denounce that heritage with impunity.

“Therefore, let there be a start on the road back, just as there was in Brown v. Board of Education, supra, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, in the field of school segregation.   In this area, let there emerge a rule of constitutional decision which clearly supports the accommodation concept announced in Zorach v. Clauson, supra, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954.   Such a rule should also make it plain that locally formulated curricula recognizing and implementing the need for moral and ethical training of school pupils not only are permissible but are to be encouraged.  [Fn. omitted.]”  (Johnson v. Huntington Beach Union Sch. Dist., supra, 68 Cal.App.3d 1, 29–35, 137 Cal.Rptr. 43.)

What do Dr. Kirk's observations and Frank Goble's essay have to do with the case here and other situations, like that in Johnson ?   Such decisions, as I noted in Johnson, above quoted, have had the inevitable result of denigrating the notion of or even the need for individual citizen responsibility exercised in making choices of behavior.   Thomas Jefferson, along with many others, steadfastly warned that the indispensable ingredient of a successfully functioning free society is an educated and responsible citizenry.

The Founding Fathers for the most part, deists, were highly moral and responsible persons;  otherwise, the notion of humankind's divine origins are made clear in the Declaration of Independence.   What the Founding Fathers were staunchlessly opposed to was not the practice of religion, but the yoke of a state-imposed religion.   At this point it is appropriate to note again the other portion of the First Amendment, namely “That Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, ․”  (Emphasis added.)   In other words, while the framers, in drafting the Constitution, saw as an unmitigated evil the establishment of a state religion, at the same time under the precise language of the First Amendment, they fully expected, if not encouraged, unfettered practice of religion as part of the daily lives of the population.   Thus, the pronouncement that there be no proscription placed upon the free exercise of religion provides the basis for a sound legal argument that voluntary unprescribed religious observances and activities within the educational framework which do not unduly impinge upon the sensitivities of others are to be protected from a tyranny of the minority and not condemned as impermissible.

In reaction to the proposition just expressed, I can just imagine the “foot-in-the-door” arguments being screamed by the minority noted.   Nonsense!  My response to such reaction is that, whereas I cannot define in advance where the precise line for every possible activity should be drawn between “make no law” and “the free exercise thereof,” I yet have no doubt that there would be little if any difficulty in identifying, on a case-by-case basis, on which side of the line a challenged activity would fall.

Once again I commend the author of the lead opinion with fervent hope that not too long hence a new direction of decisions will emerge in cases of this kind, giving much needed impetus to the now budding efforts to restore to the nation's public-school classrooms the teaching of fundamental moral values, e.g. honesty, tolerance, justice, kindness, courage, and generosity.

FOOTNOTES

1.   The text of the benediction was as follows:  “To the graduating class, I wish you success and that your knowledge gained here will turn to understanding and love.   And may you stay forever young.”   Plaintiffs concede that this benediction was constitutionally permissible.

2.   The text of the invocation was as follows:  “Graduates, faculty, friends, family.   I consider it a privilege to be here this evening to do the Invocation, particularly as I look back to 20 years ago today that I graduated from high school.“It's a real blessing to speak to you and encourage you to be confident in looking forward to the years ahead.   That hope, that confidence, that indeed there are certain to be changes to come, will come.   Yet each point of change is an opportunity for growth.   And I want to encourage you to have confidence looking forwardd [sic ] to that.“And so it is that I want to even extend that in a Prayer.   That as you have the opportunity to grow and change, and to face things, and sometimes those things will cause you to be apprehensive, cause you to begin to doubt, I have found that for myself its [sic ] good to have something, someone to trust in that is greater than yourself.“So if you would like to you can bow your head, if not, feel free not to, that's what freedom is all about.“Heavenly father, I thank you for the privilege it is to see these graduates going forth receiving their diplomas this evening.   To celebrate this time, I pray that you would give them that blessing, that confidence, courage, vision, hope, peace and gladness, and looking forward tothe [sic ] days to come, the years to come being confident of what they have already been able to do in receiving this diploma.“Now I pray your blessing upon them, in the name of our Lord, amen.”

3.   The text of the benediction was as follows:  “Will the audience please stand and join us in prayer.“Dear Father, we thank You for these graduates who have meant so much to us.   We thank You for their energy, their enthusiasm, their sense of humor and their sense for life.   May the years never diminish these traits.“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.“We ask Your blessings so that their lives will brim with happiness and good health.   And that each one experiences a life rich in friendship and rich in love.“Finally, we ask these young men and women, mature in years, may they forever remain young at heart and free in spirit.   We ask for these in Your name, amen.”

4.   “An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, ․ by a citizen resident therein, ․ who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein․”  (Code Civ.Proc., § 526a.)

5.   We examine the constitutionality of the School District's action on independent state grounds.  (Mandel v. Hodges (1976) 54 Cal.App.3d 596, 616, 127 Cal.Rptr. 244.)   However, because few California cases discuss California's constitutional prohibition against the interaction of church and state, we “ ‘also consult principles of federal cases as they seem compelling guides to uncharted state grounds.’  [Citation.]”   (Bennett, supra 193 Cal.App.3d at p. 1017, 238 Cal.Rptr. 819.)

6.   “See Kluger, Simple Justice (1976).”

7.   The Thomas Jefferson Research Center is a nonprofit corporation organized in 1963 for multi-disciplinary applied human research.   The organizers were concerned over an increase in social problems and have sought to determine if the problem-solving methods of professional management could be successfully applied to the solution of human problems.”

8.   “Actually, it seems that the latter portion of the admonition of the establishment clause has been wholly overlooked, i.e., where it says that ‘Congress shall make no law ․ prohibiting the free exercise [of religion].’ ”

DABNEY, Associate Justice.

CAMPBELL, P.J., and McDANIEL, J., concur.