Lee v. Weisman (opinion not assigned)

Check out the Duke Law Video on this case

Commencement prayer case from Providence, Rhode Island.

Who was deprived of liberty in this case? Students and parents offended by Rabbi Gutterman's gentle and inclusive invocation? Or students and parents who wished to include an invocation as one small part of the speeches and exhortations that make up a commencement ceremony?

Are all prayers at commencement prohibited?

Justice Kennedy strikes down the commencement prayer because he concludes that "young graduates who object are induced to conform." The EC forbids a public school from "persudaing or compelling a student to participate in a religious exercise." So how were students coerced in this case?

Do dissenting  students have a right to object to any ideas that are imposed upon them in the course of 13 years of public schooling? What of the conservative student who objects to the constant school-sponsored support for gay rights, environmentalism, and multiculturalism?

As Justice Kennedy put it so clearly in Lee v. Weisman: “To endure the speech of false ideas or offensive content and then to counter it is part of learning how to live in a pluralistic society, a society which insists upon open discourse towards the end of a tolerant citizenry. And tolerance presupposes some mutuality of obligation....Against this background, students may consider it an odd measure of justice to be subjected during the course of their educations to ideas deemed offensive and irreligious, but to be denied a brief formal prayer ceremony that the school offers in return. This argument cannot prevail, however...”

So, heckler's vetoes are bad and forbidden....except when they are good and required! Is this a little like heads the secular kids win, tails the religious kids lose?

Now consider this excerpt from my heckler's veto article (at p. 291):

Of course, the “impressionable children” argument cuts both ways, because the willing audience for the nativity display [or the commencement prayer] is also composed of impressionable children who, if religious displays are extirpated from a public school culture open to all sorts of secular displays, might well feel pressure to believe that only secular causes are true and worthy of recognition. If the nativity display might cause offended observers to feel like political outsiders, how much more so will religious children feel like political outsiders when the only displays cleansed from the public school culture are the ones that most make them feel equally regarded and welcome? As Justice Thomas observed in Good News Club v. Milford Central School, when taking account of the impressionable “minds of schoolchildren … we cannot say the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint” if only religious displays are banned from the public school culture.