Read excerpts from the briefs here.
Excerpt: Brief in Lee v. Weisman, 505 U.S. 577 (1992)
We believe that evidence, including that adduced in Marsh andLynch, shows that the Framers fully assented to the appearance ofnon-coercive religious practices in civic life. To focus, as thelower courts have done, on the fact that the specific type of ceremonyat issue did not exist when the Constitution was adopted is to blindoneself to the broader truth on which Marsh was founded: that publicceremonial acknowledgments of religion were welcomed by the Framersand are deeply rooted in the Nation's heritage. /17/ Indeed, historysuggests that listening to a religious invocation at a civic ceremonywas seen not as an establishment of religion by the government but, onthe contrary, as an expression of civic tolerance and accommodation toall citizens. /18/
Moreover, acceptance of religious references at civic ceremoniesreflects only part of the substantial historical evidence thatreligious coercion was the essence of what the Establishment Clausewas designed to prevent. See County of Allegheny v. American CivilLiberties Union, 109 S. Ct. at 3135-3138 (Kennedy, J., concurring inthe judgment in part and dissenting in part); American JewishCongress v. City of Chicago, 827 F.2d 120, 135-137 (7th Cir. 1987)(Easterbrook, J., dissenting); McConnell, Coercion: The Lost Elementof Establishment, 27 Wm. & Mary L. Rev. 933 (1986). Historicalmaterials suggest that the presence of religion in public life was notgenerally considered offensive at the time of the Framing and indeedwas often welcomed so long as that presence was not coercive and notpart of an estblishment of an official church. /19/
We recognize that opinions constituting a majority of the Court inthe County of Allegheny indicated that proof of the coercive nature ofa challenged activity was not necessary to demonstrate anEstablishment Clause violation. 109 S. Ct. at 3119. (O'Connor, J.,concurring). However, as noted above, Allegheny was itself anapplication of the test that we believe should be reconsidered in thisarea. /20/
Moreover, we agree that Establishment Clause concerns are triggerednot only by coercion in the form of direct, legal compulsion, but alsoin the form of more indirect social coercion. For instance, werecognize that the special character of the public school setting hasheightened this Court's sensitivity to subtle forms of coercion. See,e.g., Engel v. Vitale, 370 U.S. 421, 430-431 (1962). We do notbelieve, however, that graduation ceremonies pose a risk of coercion.Such ceremonies typically occur but once a year. They are addressednot to children alone but to families as a whole which are, as theStein court noted, a natural bulwark against any coercion. Indeed,children in the family setting may hear similar invocations andbenedictions at inaugurals and other public ceremonies. In short,whatever special concerns about subtle coercion may be present in theclassroom setting -- where inculcation is the name of the game -- theydo not carry over into the commencement setting, which is moreproperly understood as a civic ceremony than part of the educationalmission.
We also recognize that modern government, for better or worse, hasa far more substantial presence in the daily lives of its citizensthan did the government of 1789, and thus may be capable of creating apervasive atmosphere of conformity without resort to direct legalcompulsion. Accordingly, Establishment Clause jurisprudence mustremain sensitive to the manner in which new forms of governmentalpower could lead to indirect coercion.