Washington -- Forests are still being felled to produce the paper consumed in unending litigation to fend off "establishment of religion" in America. Now the Supreme Court has ruled 5-4 that even nonsectarian invocations and benedictions at public school graduations are unconstitutional. This trashing of a traditional community rite -- and right -- is a result of judicial obtuseness and arrogance.
ZTC Two decades ago the court, inebriated by its ingenuity, concocted a three-part test of "establishment." That test prohibits government action that has a religious purpose, or has the primary effect of advancing or inhibiting religion, or fosters excessive entanglement of government with religion.
This test was an incitement to litigation, and soon the court, wielding its theological micrometer, was ruling that a Hanukkah menorah in Pittsburgh was constitutional because it was near a Christmas tree but a creche down the street was unconstitutional because, unlike a court-approved Rhode Island creche, it did not have enough secular stuff (reindeer, snowmen, Santa's houses) to dilute sufficiently the religious "purpose." Thus were courts forced to make judgments that, a disgusted judge said, are "more commonly associated with interior decorators than with the judiciary."
Hairs were split, then split again. The court ruled that government could help finance maps for parochial schools but not books. A critic wondered: What about atlases -- books of maps?
We all wondered: Could Establishment Clause law become sillier? It now has.
Now five justices have added a fourth test of "establishment." They have ruled that a rabbi's prayers at a Rhode Island public junior high school's graduation constituted "psychological coercion." The prayers placed "subtle and indirect public and peer pressure" on unbelievers who, when asked to stand or "maintain a respectful silence," face "the dilemma" of protesting or appearing to participate. The justices say that the possibility that peer pressure would "coerce" someone into doing something for appearances, and someone would falsely appear to be making a religious affirmation, makes the prayers an "establishment" of religion.
Cut more trees, make more paper, summon the lawyers, prepare to litigate such questions as:
Was there unconstitutional coercion in the Pledge of Allegiance that preceded the rabbi's invocation? The Pledge mentions God. Besides, coercion to political orthodoxy -- "peer pressure" to recite the pledge -- is just as unconstitutional as coercion to religious orthodoxy.
Justice Antonin Scalia raises that question in his scathing dissent. Justice Scalia notes that three years ago, Justice Anthony Kennedy wrote that the meaning of the Establishment Clause "is to be determined by reference to historical practices and understandings." Now Justice Kennedy, who evidently lacks any intellectual compass, finds unconstitutional a tradition as old as public-school graduation ceremonies.
Consider this: Is there not suddenly unconstitutional "psychological coercion" toward political orthodoxy in the playing the national anthem at sporting events? Is there not "public and peer pressure" to stand respectfully? See you in court.
The court majority, inciting litigation, says it has not addressed the question of whether praying in civic ceremonies involves unconstitutional "psychological coercion" when "mature adults" are involved. The decision surely applies to high schools as well as junior highs. The Washington Post, approving the court's ruling, says it protects "schoolchildren." "Children" who can vote? Come to think about it, maybe the decision does not apply to high schools. Let's litigate!
By the brittle logic of this ruling, graduation prayers are still permissible if school administrators announce, perhaps in graduation programs, that no one is compelled to join in prayer, and no one will be assumed to be praying if they are polite while others are praying. To such niggling is society reduced by this court's manic fine-tuning of our "rights."
Whose rights? A Rhode Island junior high graduate has successfully asserted her right to extinguish a traditional right of American communities to express reverence. Because something the community enjoyed annoyed this young woman, communities from coast to coast must abandon traditions. According to liberal theory -- individual rights are everything, community rights nothing -- we are more free because of this.
Liberals can take heart. The court still has a majority of their kind of justices, people incapable of drawing reasonable distinctions.
George Will is a syndicated columnist.