JAMES SANDS et al., Plaintiffs and Respondents, v. MORONGO UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants, 53 Cal. 3d 863

Opinion KENNARD,J. —In this case we hold that religious invocations and benedictions at public high school graduation ceremonies are constitutionally impermissible. Our review of applicable precedent convinces us that this practice violates the guarantees found in the United States and California Constitutions that religion and government shall remain separate. Ours is a nation composed of people of many different races and faiths.

Some are Native Americans, many of whom adhere to beliefs formed here over many centuries; others are immigrants, or the descendants of immigrants, many of whom came here to escape religious persecution. The historical fact of our diverse origins and beliefs is a vital part of our national heritage and central to the meaning of the establishment and free exercise clauses of the First Amendment to the United States Constitution.

The establishment clause reflects and implements the fundamental wisdom that freedom of religion flourishes only when government observes strict adherence to the principle of separation of religion and state authority. Government-sponsored religious invocations and benedictions at public school graduation ceremonies contravene the fundamental principle of governmental neutrality and abstention in matters affecting religious beliefs and practices. I.

Facts Defendant Morongo Unified School District (the District) operates four high schools: Yucca Valley High School, Twenty-Nine Palms High School, Sky High School, and Monument High School. Opening invocations and closing benedictions have been included in graduation ceremonies at Yucca Valley High School since 1968, at Twenty-Nine Palms High School since 1937, at Sky High School since 1977, and at Monument High School since 1978. At Yucca Valley High School, the president of the graduating class, in consultation with the vice-principal, selects speakers to conduct the invocation and benediction.

In 1985, a Protestant minister delivered the invocation, and a faculty member gave the benediction. In 1986, a teacher delivered the benediction, and a Protestant minister selected by the vice-principal gave the invocation. At Twenty-Nine Palms High School, a student committee initially selects the speakers for the invocation and benediction. In 1985, a Presbyterian minister delivered the invocation, and a Catholic priest gave the benediction. The record does not reveal how graduation speakers are initially selected at either Sky High School or Monument High School.

At Monument High School’s 1985 graduation ceremony, a Protestant minister delivered both the invocation and the benediction. At Sky High School, the same Methodist pastor has given the invocation and the benediction every year since that school’s first graduation ceremony in 1977. As the District’s counsel acknowledged at oral argument, District officials give final approval to the selection of those who deliver the graduation prayers.

Apart from a single nonreligious benediction at one high school in one year and a religious benediction at the same school the next year, every invocation or benediction in this case has been delivered by either a Protestant minister or a Catholic priest. With the exception of a benediction by a teacher at Yucca Valley High School in 1985, all the invocations and benedictions at issue had explicitly religious content.

For example, the benediction at Yucca Valley High School in 1986 was as follows: “Will the audience please stand and join us in prayer. [If] 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, [fl] 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. [If] 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, flj] 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.” Similarly, the invocation given that year at Yucca Valley High School concluded with these words: “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 to the days to come, the years to come being confident of what they have already been able to do in receiving this diploma, [fl] Now I pray your blessing upon them, in the name of our Lord, amen.” Plaintiffs Jim Sands and Jean Bertolette are taxpayers residing within the District. They object to the inclusion of religious invocations, benedictions, or any other religious ritual at public school graduation ceremonies in the District.

After unsuccessful efforts to persuade District officials to cease the practice of including prayers at graduations, in June 1986 they brought this action for declaratory and injunctive relief prohibiting the District and its officials from including religious invocations at public school ceremonies. They proceeded under Code of Civil Procedure

section 526a, which authorizes taxpayers’ actions against local public entities to enjoin the unlawful expenditure of public funds. It is not disputed that the graduation ceremonies are conducted on public school property, are publicly funded, and are planned by public school administrators who also participate in the ceremonies in their official capacities. In July 1987, while this case was pending in the trial court, the Court of Appeal held in Bennett v.

Livermore Unified School Dist. (1987) 193 Cal.App.3d 1012 [238 Cal.Rptr. 819] that the inclusion of religious invocations at high school graduation ceremonies violated both the state and federal Constitutions. After the decision in Bennett, the parties in this case made cross-motions for

summary judgment. The trial court granted plaintiffs’ motion and denied the District’s motion. The court entered judgment prohibiting the District and its officials from conducting or attempting to conduct religious invocations and benedictions at any public school ceremonies in the District. The District appealed. The Court of Appeal disagreed with the Bennett decision and reversed the trial court’s judgment. We granted review to resolve the conflict on this constitutional question. II. Discussion A. The Establishment Clause of the United States Constitution 1.

General Principles The federal Constitution mandates that government “make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” (U.S. Const., 1st Amend.) The former provision, known as the establishment clause, forbids government affiliation with religious beliefs and institutions. The separation that the establishment clause commands between religion and government manifests and promotes respect for religious pluralism and should not be perceived as hostility or indifference to religion.

As the United States Supreme Court has remarked, “No misperception could be more antithetical to the values embodied in the Establishment Clause.” (County of Allegheny v. American Civil Liberties U. (1989) 492 U.S. 573, 610 [106 L.Ed.2d 472, 505, 109 S.Ct. 3086, 3110] (hereafter County of Allegheny).) Indeed, the establishment and free exercise clauses are complementary because scrupulous government neutrality in religious matters enhances religious freedom.

As the high court has explained, “[t]he Constitution mandates that the government remain secular, rather than affiliating itself with religious beliefs or institutions, precisely in order to avoid discriminating among citizens on the basis of their religious faiths.” (Ibid. [106 L.Ed.2d 472, 505, 109 S.Ct. 3086, 3110].) In Everson v.

Board of Education (1947) 330 U.S. 1, 15-16 [91 L.Ed.711, 723, 67 S.Ct. 504, 168 A.L.R. 1392], the United States Supreme Court’s first modern case interpreting the establishment clause, the court enunciated these principles: “The ‘establishment of religion’ clause of the First Amendment means at least this: 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.

Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa." Sixteen years later, in Abington School Dist. v. Schempp (1963) 374 U.S. 203, 222 [10 L.Ed.2d 844, 858, 83 S.Ct. 1560], the court synthesized the teachings of its cases into two tests: “[T]o withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” The court thereafter consistently applied those tests and, in Walz v.

Tax Commission (1970) 397 U.S. 664, 674 [25 L.Ed.2d 697, 704, 90 S.Ct. 1409], it developed a third test: the law or government action must not foster “an excessive government entanglement with religion.” One year later, in Lemon v. Kurtzman (1971) 403 U.S. 602, 612-613 [29 L.Ed.2d 745, 755-756, 91 S.Ct. 2105] (hereafter Lemon), the court made clear that these three tests, which have since become known collectively as the Lemon test, were to be applied consistently in establishment clause cases.

In 1987, the high court observed that “[t]he Lemon test has been applied in all cases since its adoption in 1971, except in Marsh v. Chambers . . . .” (Edwards v. Aguillard (1987) 482 U.S. 578, 583, fn. 4 [96 L.Ed.2d 510, 518, 107 S.Ct. 2573].) Since it made this observation, the high court has applied the Lemon test in every establishment clause case it has decided. (See, e.g., Board of Education v. Mergens (1990) 496 U.S. 226 [110 L.Ed.2d 191, 110 S.Ct. 2356]; Jimmy Swaggart Ministries v.

Board of Equalization (1990) 493 U.S. 378 [107 L.Ed.2d 796, 110 S.Ct. 688]; County of Allegheny, supra, 492 U.S. 573; Texas Monthly, Inc. v. Bullock (1989) 489 U.S. 1 [103 L.Ed.2d 1, 109 S.Ct. 890]; Bowen v.

Kendrick (1988) 487 U.S. 589 [101 L.Ed.2d 520, 108 S.Ct. 2562].) In County of Allegheny, supra, 492 U.S. 573, Justice Kennedy, in a separate opinion, departed from the court’s usual application of the Lemon test, arguing that there should be a “flexible accommodation” of religion, and that the court should look to two principles in deciding establishment clause cases: first, government may not “coerce anyone to support or participate in any religion,” and second, government may not “give direct benefits to a religion in such a degree that it in fact ‘establishes a [state] religion or religious faith, or tends to do so.’ ” (492 U.S. at p. 659 [106 L.Ed.2d at p. 538, 109 S.Ct. at p. 3136.) But a majority of the United States Supreme Court rejected this proposed reformulation of the law, concluding that it was “nothing more than an attempt to lower considerably the level of scrutiny in Establishment Clauses cases.” (492 U.S. at p. 609 [106 L.Ed.2d at pp. 504-505, 109 S.Ct. at p. 3109.) Thus, the Lemon test (supra, 403 U.S. 602) has remained controlling law for 20 years.

We are required to decide federal constitutional cases on the law as it presently exists. Accordingly, we apply the Lemon test in this case. If a challenged governmental action fails any of the three requirements of the Lemon test, it is unconstitutional. (Edwards v.

Aguillard, supra, 482 U.S. at p.583 [96 L.Ed.2d at pp. 518-519].) Although we have doubts whether the government-sponsored prayers at issue here pass the “secular purpose” test, that question need not be addressed because we conclude that the practice of government sponsorship of graduation prayers fails both the “effect” and the “entanglement” tests of Lemon, supra, 403 U.S. 602, thus rendering the practice unconstitutional. 2.

The “Primary Effect” Test Under the “primary effect” test of Lemon, supra, 403 U.S. 602, the inquiry is whether, irrespective of the government’s actual objective, the practice in question conveys a message of endorsement or disapproval. (Wallace v.

Jaffree (1985) 472 U.S. 38, 56, fn. 42 [86 L.Ed.2d 29, 43, 105 S.Ct. 2479]; accord, County of Allegheny, supra, 492 U.S. at p. 593 [106 L.Ed.2d at p. 494, 109 S.Ct. at p. 3101].) Recently, the United States Supreme Court reaffirmed that the establishment clause “ "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.’ ” (County of Allegheny, supra, 492 U.S. at p. 593 [106 L.Ed.2d at p. 494, 109 S.Ct. at p. 3101], italics in original.) The religious invocations and benedictions challenged here are, in whole or major part, prayers.

As one federal appellate court has observed: “Prayer is perhaps the quintessential religious practice for many of the world’s faiths . . . . H[] Prayer is an address of entreaty, supplication, praise, or thanksgiving directed to some sacred or divine spirit, being, or object. That it may contemplate some wholly secular objective cannot alter the inherently religious character of the exercise.” (Karen B. v. Treen (5th Cir. 1981) 653 F.2d 897, 901, affd. (1982) 455 U.S. 913 [71 L.Ed.2d 455, 102 S.Ct. 1267].) The United States Supreme Court has recognized the religious nature of prayer. (Engel v.

Vitale (1962) 370 U.S. 421, 424-425 [8 L.Ed.2d 601, 604-605, 82 S.Ct. 1261, 86 A.L.R.2d 1285].) In the graduates’ young lives, high school graduation is a momentous achievement; it is the culmination of many hundreds of hours of instruction, study, and academic testing. In our culture, it also marks a critical stage of passage from childhood to adulthood. For these reasons, the fact of graduation is celebrated by an official ceremony attended by the graduates and their parents and teachers. Many graduates remember the occasion for the rest of their lives.

Through its graduation ceremony, a high school acknowledges and celebrates the graduates’ successful completion of its course of studies. Considered an integral part of the educational process, the graduation ceremony is organized and controlled by school officials. Public high school graduation ceremonies are generally held on government property and funded with public money. Because the ceremony is organized and controlled by the government to celebrate a significant event, words spoken as part of a public high school graduation ceremony inevitably create a strong appearance of government endorsement.

When a school district opens or closes the graduation ceremony with a prayer, it sends a powerful message that it approves of the prayer’s religious content.

As the United States Supreme Court has said: “The 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.’” (County of Allegheny, supra, 492 U.S. at pp. 593-594 [106 L.Ed.2d at p. 495, 109 S.Ct. at p. 3101], italics added.) Regardless of its actual purpose, when the government sponsors prayers at high school graduation ceremonies it gives the appearance of taking a position on religious questions.

Through the practices challenged in this case, the government appears to prefer religion over nonreligion; appears to prefer religions that acknowledge the practice of petitionary prayer over religions that do not recognize such prayer; appears to prefer the religious belief that prayer should be public over the belief that prayer should be private; and implicitly endorses religions that address a single, anthropomorphic, and male deity over those that do not.

Recently, a federal district court held unconstitutional a practice of including prayer at a high school’s graduation ceremonies that was virtually identical to the practice involved here. The court observed that students who were not members of the religions endorsed, or whose families were nonbelievers, might view the school’s action as indicative of a preference for beliefs other than their own.(Weisman v. Lee (D.R.I. 1990) 728 F.Supp. 68, 72-73, affd. (1st Cir. 1990) 908 F.2d 1090, cert, granted sub nom. Lee v.

Weisman (1991) _ U.S. _ [113 L.Ed.2d 240, 111 S.Ct. 1305].) In our view, the same is true of parents, teachers, and guests. “When a religious invocation is given via a sound system controlled by school principals and the religious invocation occurs at a school-sponsored event at a school-owned facility, the conclusion is inescapable that the religious invocation conveys a message that the school endorses the religious invocation.” (Jager v.

Douglas County School Dist. (11th Cir. 1989) 862 F.2d 824, 831 [98 A.L.R.Fed. 175], cert. den. (1989) 490 U.S. 1090 [104 L.Ed.2d 988, 109 S.Ct. 2431] [holding invocations preceding public high school football games unconstitutional].) Here, the District argues that there is no impermissible effect of endorsing a religious practice. It emphasizes that the graduation prayers occur only once a year, are brief and “nonsectarian,” and are part of a ceremony that is otherwise secular. These considerations, however, cannot validate government sponsorship of this religious practice.

Although the high school graduation ceremony occurs only once a year, it is, as noted earlier, a significant event in the lives of many participants, precisely because it occurs only once in the lifetime of a graduate. Even when such a milestone in the lives of participants is not involved, courts have invalidated annual governmental practices of a religious nature (e.g., County of Allegheny, supra, 492 U.S. 573, [annual creche display]; Fox v.

City of Los Angeles (1978) 22 Cal.3d 792 [150 Cal.Rptr. 867, 587 P.2d 663] [annual display of lighted cross]) or instances of governmental involvement with religion that are unlikely to be repeated by the participants (e.g., Feminist Women's Health Center, Inc. v. Philibosian (1984) 157 Cal.App.3d 1076 [203 Cal.Rptr. 918] [government-sponsored religious burial rites]) when they otherwise transgress constitutional boundaries. The brevity of the invocations is similarly insufficient to dispel the apparent message of government endorsement. (Jager v.

Douglas County School Dist., supra, 862 F.2d at p. 832.) Because prayer is religious and advances religion, “ ‘the limited nature of the encroachment does not free the state from the limitations of the Establishment Clause.’ ” (Ibid.; see Abington School Dist. v.

Schempp, supra, 374 U.S. 203, 225 [10 L.Ed.2d 844, 859-860] [“it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment”].) The proper focus, therefore, is not on the duration of the practice, but on its religious character. (Ibid.) Nor does the predominantly secular nature of the graduation ceremony make the government’s endorsement of prayer less offensive to the First Amendment’s establishment clause.

On the contrary, using prayers to mark the beginning or end of the graduation ceremony, which is a ritual celebration of the completion of high school, causes religion to be closely identified with government. In other words, making religious speech an integral part of this government-controlled and otherwise secular public school ceremony produces a “symbolic union” of state and religion, an effect that the establishment clause does not permit. (See Grand Rapids School District v. Ball (1985) 473 U.S. 373, 392 [87 L.Ed.2d 267, 282-283, 105 S.Ct. 3216].) In County of Allegheny, supra, 492 U.S. 573, and Lynch v.

Donnelly (1984) 465 U.S. 668 [79 L.Ed.2d 604, 104 S.Ct. 1355], the United States Supreme Court evaluated the constitutionality of government displays of religious objects by considering whether the displays, in their particular physical settings, had the effect of endorsing religious beliefs. In this case, the District proposes that we undertake a similar evaluation, arguing that graduation prayers are permissible because they are only a part of a ceremony that is secular overall. But the suggested approach is not useful in determining the constitutionality of graduation prayers.

First, government-sponsored group religious exercises are active and participatory; for example, those attending the ceremony may be asked to “stand and join in prayer.” Such practices cannot be equated with the passive display of religious objects. Moreover, under the District’s logic, prayers at the beginning of the public school day would be constitutionally unobjectionable solely because they would be part of an educational experience that is predominantly nonreligious. Yet prayers at the beginning of the school day have long been held unconstitutional. (Engel v.

Vitale, supra, 370 U.S. 421.) The assertedly “nonsectarian” nature of the prayers at issue here does not render their government sponsorship constitutionally acceptable. As discussed earlier, a government practice violates the establishment clause when it appears to place the government’s stamp of approval on a particular type of religious practice, such as public prayer.

The United States Supreme Court has made clear that the establishment clause prohibits not only explicit denominational preferences, but also government favoritism of religion in general (e.g., County of Allegheny, supra, 492 U.S. at p. 593 [106 L.Ed.2d at pp. 494-495, 109 S.Ct. at p. 3101]), as well as government sponsorship of “neutral” prayers and religious exercises (Engel v. Vitale, supra, 370 U.S. at p. 430 [8 L.Ed.2d at p. 60]). The inclusion of prayers in the official school ceremony cannot be justified as “accommodation” of religion.

The United States Supreme Court explained in County of Allegheny that “[government efforts to accommodate religion are permissible when they remove burdens on the free exercise of religion.” (492 U.S. at p. 601, fn. 51 [106 L.Ed.2d at pp. 499-500, 109 S.Ct. at p. 3105], italics added.) The practice of opening and closing a government-sponsored school ceremony with prayers does not remove any burden on the free exercise of religion. There is no free exercise right for government officials to include prayers in a public school ceremony.

The high court has acknowledged that the establishment clause permits some accommodation of religion that is not mandated by the free exercise clause (id. at p. 613, fn. 59 [106 L.Ed.2d at p. 507, 109 S.Ct. at p. 3111]), and that there is “ample room under the Establishment Clause for ‘benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference’ ” (Corporation of Presiding Bishop v. Amos (1987) 483 U.S. 327, 334 [97 L.Ed.2d 273, 282, 107 S.Ct. 2862], italics added).

There is no room, however, for official sponsorship under the guise of “accommodation.” In this case, the District also seeks to justify its practice of incorporating prayers in its graduation programs by arguing that “no state coercive authority” is present in the graduation context. But, as we shall explain, this focus on coercion is misplaced.

(5) It has been clear for almost three decades that coercion is not an element of an establishment clause violation. In Engel v. Vitale, supra, 370 U.S. 421, 430 [8 L.Ed.2d 601, 607], the United States Supreme Court invalidated a statute that required a brief nondenominational prayer to be recited at the start of each school day.

The court explained: “Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause . . . .” (Ibid. [8 L.Ed.2d 601, 607].) In subsequent decisions, the high court has adhered to this holding. (See, e.g., Abington School Dist. v.

Schempp, supra, 374 U.S. at p. 223 [10 L.Ed.2d at p. 858] [“The distinction between the two clauses is apparent—a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.”]; Committee for Public Education v.

Nyquist (1973) 413 U.S. 756, 786 [37 L.Ed.2d 948, 970, 93 S.Ct. 2955] [“proof of coercion . . . [is] not a necessary element of any claim under the Establishment Clause”]; County of Allegheny, supra, 492 U.S. at p._ [106 L.Ed.2d at p. 517, 109 S.Ct. at p. 3119] (conc. opn. of O’Connor, J., for three justices) [“To require a showing of. . . even indirect coercion, as an essential element of an Establishment Clause violation would make the Free Exercise Clause a redundancy.”].) Although graduation ceremonies are usually not mandatory, most graduates and their families want to and do attend them.

In Abington School Dist. v. Schempp, supra, 374 U.S. 203, the high court invalidated religious exercises in schools even though “the student may absent himself from the classroom or, should he elect to remain, not participate in the exercises.” (At p. 207 [10 L.Ed.2d at p. 850].) Similarly, school officials cannot avoid an establishment clause violation by permitting graduating students to forgo their own graduation ceremonies when the official program includes religious messages with which they disagree.

Such a result, in which nonbelievers and adherents of minority religions would be effectively excluded from, or made to feel unwelcome at, an important public school activity, would be contrary to the proper and intended role of public schools in our society. The public school is “[d]esigned to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people . . . .” (McCollum v.

Board of Education (1948) 333 U.S. 203, 216 [92 L.Ed. 649, 661, 68 S.Ct. 461, 2 A.L.R.2d 1338] (conc. opn. of Frankfurter, J.).) In other words, “ ‘[t]he public school is at once the symbol of our democracy and the most pervasive means of promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools ....’” (Edwards v.

Aguillard, supra, 482 U.S. at p. 584 [96 L.Ed.2d at p. 519].) We conclude that the practice of including religious invocations and benedictions at public high school graduation ceremonies inevitably and impermissibly conveys a message that the District favors or prefers the religious beliefs expressed by the invocation and benediction speakers. “If government is to be neutral in matters of religion, rather than showing either favoritism or disapproval. . . , government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community.” (County of Allegheny, supra, 492 U.S. at p. 627 [106 L.Ed.2d at p. 517, 109 S.Ct. at p. 3119] (conc. opn. of O’Connor, J.).) The practice at issue fails the “effect” test of Lemon, supra, 403 U.S. 602, and is therefore unconstitutional. 3.

The “Excessive Entanglement” Test Government supervision of religious practices is fundamentally inconsistent with the concept of separation of religion and civil authority. Thus, the United States Supreme Court has said that the establishment clause forbids “ ‘state inspection and evaluation of the religious content of a religious organization ....’” (Larson v. Valente (1982) 456 U.S. 228, 255 [72 L.Ed.2d 33, 54, 102 S.Ct. 1673], quoting Lemon, supra, 403 U.S. at p. 620 [29 L.Ed.2d at p. 760].) The establishment clause also prohibits state inspection and evaluation of the religious content of speech. (Aguilar v.

Felton (1985) 473 U.S. 402, 410-411 [87 L.Ed.2d 290, 298-299, 105 S.Ct. 3232].) Such activities pose an “intolerable risk” of excessive government entanglement with religion. (See Tony & Susan Alamo Foundation v. Sec’y of Labor (1985) 471 U.S. 290, 305 [85 L.Ed.2d 278, 291, 105 S.Ct. 1953].) The practice of including prayers at public high school graduation ceremonies impermissibly entangles government in religious matters in two ways: It involves governmental selection or approval of religious speakers and governmental approval of the content of public prayer.

Graduation ceremonies are official functions, and school administrators must either select the individuals who will give the invocations and benedictions, or approve in the final instance the students’ selections of religious speakers. As mentioned previously, at one of the four high schools the same minister has given both the invocation and benediction every year since 1977.

This practice is constitutionally impermissible because the selection of the same minister or ministers of the same religion for graduation ceremonies over a number of years conveys a powerful message of endorsement of a single religion, thereby violating the “effect” test of Lemon, supra, 403 U.S. 602. At the other high schools, however, the District chooses annually among the clergy or adherents of various religions to deliver the graduation prayers. The process of making these selections impermissibly entangles the District in religious matters.

How is the public school official to choose a speaker to deliver a religious message? On what basis does the official determine which religion or creed will be represented and which adherent or member of the clergy will be acceptable? Because the tendency is great to make such choices dependent on the religious preference of the school official, or on the religious preferences of the majority of the school community, the degree of entanglement is unacceptably high.

There is a second problem with the District’s practices that creates an impermissible risk of entanglement of civil authorities with religious matters. If a school district permits members of the clergy or adherents of various religions to deliver graduation prayers, how will it ensure against promotion of specific religious beliefs or concepts? Local school officials would have to evaluate the content of the prayers. But such prophylactic government monitoring of religious speech is constitutionally impermissible.

The United States Supreme Court has held that “ ‘for [a state] to be “certain,” as it must be, that . . . [religious] personnel do not advance the religious mission’ ” of their churches in the public school setting, would “ ‘necessarily give rise to a constitutionally intolerable degree of entanglement between church and state.’” (Aguilar v.

Felton, supra, 473 U.S. at pp. 410-411 [87 L.Ed.2d at p. 298]; compare Mergens, supra, 496 U.S. 226, _ [110 L.Ed.2d 191, 217-218, 110 S.Ct. 2356, 2373] [federal law requiring equal access for campus religious clubs on same basis as other student organizations does not excessively entangle government with religion because school officials may not promote, lead, or participate in meetings and may monitor them only for custodial purposes], with Widmar v.

Vincent (1981) 454 U.S. 263, 272, fn. 11 [70 L.Ed.2d 440, 449, 102 S.Ct. 269] [invasive monitoring of student group meetings to prevent religious speech would risk excessive entanglement].) To allow preventive monitoring by the state of the content of religious speech inevitably leads to gradual official development of what is acceptable public prayer. “This result is as contrary to the requirements of the Establishment Clause as is . . . composition of an official state prayer.” (Weisman v.

Lee, supra, 728 F.Supp. at p. 74.) This kind of surveillance creates the entanglement that the United States Supreme Court condemned in Lemon, supra, 403 U.S. 602. (Bennett v. Liver-more Unified School Dist., supra, 193 Cal.App.3d at p. 1020.) We conclude that the official approval of religious speakers and government monitoring of the content of religious speech necessarily involved in the practice at issue impermissibly entangle government in religious matters, and therefore that government sponsorship of graduation prayers is unconstitutional. 4. Applicability of Marsh v.

Chambers In support of its argument that prayers at its high school graduation ceremonies are proper, the District also relies on Marsh v. Chambers, supra, 463 U.S. 783 (hereafter Marsh), and Stein v. Plainwell Community Schools (6th Cir. 1987) 822 F.2d 1406. In Marsh, the United States Supreme Court, declining to employ the Lemon tests, upheld the practice of opening legislative sessions with prayer.

The court based its holding in Marsh on the “unique history” of legislative prayer, emphasizing that the First Congress opened its sessions with prayer. (463 U.S. at pp. 790-791 [77 L.Ed.2d at pp. 1026-1027].) In County of Allegheny, supra, 492 U.S. at p. 669 [106 L.Ed.2d at pp. 544-545, 109 S.Ct. at p. 3142], Justice Kennedy proposed an approach to establishment clause problems that would have extended Marsh beyond its facts and sanctioned governmental religious practices accepted in 1791 and their contemporary equivalents.

The majority rejected this approach: “Marsh plainly does not stand for the sweeping proposition . . . that all accepted practices 200 years old and their equivalents are constitutional today. . . . [11] [This] reading of Marsh would gut the core of the Establishment Clause, as this Court understands it.” (492 U.S. at p. 603 [106 L.Ed.2d at p. 501, 109 S.Ct. at p. 3106].) The high court has taken particular care to explain that Marsh should not be applied to determine the constitutionality of public school practices. In Edwards v.

Aguillard, supra, 482 U.S. 578, the court said the historical approach taken in Marsh 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.” (482 U.S. at p. 583, fn. 4 [96 L.Ed.2d at pp. 518-519].) In Stein v.

Plainwell Community Schools, supra, 822 F.2d 1406 (hereafter Stein), a federal appellate court concluded that religious invocations and benedictions at high school commencement exercises were constitutionally permissible in principle, although it also concluded that the specific invocations and benedictions at issue violated the establishment clause because they “employ[ed] the language of Christian theology and prayer.” (Id. at p. 1410 (lead opn. of Merritt, J.).) In reaching these conclusions, the court relied on Marsh, supra, 463 U.S. 783, but made no reference whatsoever to the United States Supreme Court’s statement in Edwards v.

Aguillard, supra, 482 U.S. at page 583, footnote 4 [96 L.Ed.2d at pages 518-519], that Marsh has no application to religion in the public schools. Because it disregarded this explicit limitation imposed by the high court, we conclude that Stein represents an improper extension of Marsh. Moreover, the approach of the Stein court, supra, 822 F.2d 1406, requires judges or other officials to pass on the acceptability of specific religious references in public prayers.

Yet “it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.” (Engel v. Vitale, supra, 370 U.S. at p. 425 [8 L.Ed.2d at p. 605].) Judges and other government officials have no more authority to edit public prayers than they have to compose them. Finally, we observe that in this case the District’s practices would not pass constitutional muster even under Stein, supra, 822 F.2d 1406.

The prayers at the District’s graduation ceremonies contained religious references indistinguishable from those in one of the prayers held unconstitutional in Stein. (Id. at p. 1407, fn. 1.) B. The Religion Clauses of the California Constitution The California Constitution contains guarantees of the separation of religion and state in addition to those found in the federal Constitution. In language virtually identical to the First Amendment’s establishment clause, our state Constitution declares, “The Legislature shall make no law respecting an establishment of religion.” (Cal. Const., art.

I, § 4.) Although federal cases may supply guidance for interpreting this provision, California courts must independently determine its scope. (Cal. Const., art. I, § 24; see Bennett v. Livermore Unified School Dist., supra, 193 Cal.App.3d at p. 1017.) The practice of government endorsement of graduation prayers not only violates the establishment clause of the federal Constitution but independently violates the separation of religion and government set forth in the corresponding clause of the California Constitution.

Two other provisions of the state Constitution, having no counterparts in the federal charter, provide additional guarantees that religion and government shall remain separate.

Section 4 of

article I guarantees the “[f]ree exercise and enjoyment of religion without discrimination or preference . . . .” The Attorney General of this state has observed that “[i]t would be difficult to imagine a more sweeping statement of the principle of governmental impartiality in the field of religion” than that found in the “no preference” clause (25 Ops.Cal.Atty.Gen. 316, 319 (1955)), and California courts have interpreted the clause as being more protective of the principle of separation than the federal guarantee (Fox v. City of Los Angeles, supra, 22 Cal. 3d 792).

As we noted earlier, when the government sponsors prayers at public school ceremonies it appears to take positions on religious questions. The practice at issue independently violates the “no preference” clause of the California Constitution. The California Constitution further provides: “Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, 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

section prohibits not only material aid to religion, but any official involvement that promotes religion. (California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 605, fn. 12 [116 Cal.Rptr. 361, 526 P.2d 513].) As we have explained, government sponsorship of prayer promotes religion. Accordingly, religious invocations and benedictions at public school graduation ceremonies are prohibited by

article XVI,

section 5 of the state Constitution as well. III. Conclusion Ours is a religiously diverse nation. Within the vast array of Christian denominations and sects, there is a wide variety of belief and practice. Moreover, substantial segments of our population adhere to non-Christian religions or to no religion. Respect for the differing religious choices of the people of this country requires that government neither place its stamp of approval on any particular religious practice, nor appear to take a stand on any religious question.

In a world frequently torn by religious factionalism and the violence tragically associated with political division along religious lines, our nation’s position of governmental neutrality on religious matters stands as an illuminating example of the true meaning of freedom and tolerance. Because the practice of officially endorsed prayers at public school graduation ceremonies cannot be reconciled with the constitutional principles of religious freedom and official neutrality, we reverse the judgment of the Court of Appeal.

The matter is remanded to the Court of Appeal with directions to affirm the judgment of the trial court. Mosk, J., and Broussard, J., concurred. The high court recently reiterated this statement as controlling law. (County of Allegheny, supra, 492 U.S. at p. 592 [106 L.Ed.2d at p. 493, 109 S.Ct. at p. 3100].) As discussed later in this opinion, the high court has explained that Marsh v. Chambers (1983) 463 U.S. 783 [77 L.Ed.2d 1019, 103 S.Ct. 3330] has no application to cases involving religion in the public schools.

In his dissent, Justice Panelli states that in the high court’s most recent establishment clause case, Board of Education v. Mergens, supra, 496 U.S. 226 (hereafter Mergens), “the lead opinion’s treatment of the Lemon test did not receive five votes.” (Post, at p. 926, fn. 6.) If this statement is meant to suggest that Lemon no longer commands a majority in the high court, it is misleading.

In Mergens, four justices joined the lead opinion applying Lemon. (Mergens, supra, 496 U.S. at pp._ [110 L.Ed.2d at pp. 214-218, 110 S.Ct. at pp. 2370-2373] (opn. of O’Connor, J.).) Two justices applied Lemon in a concurring opinion. (496 U.S. at p. _ [110 L.Ed.2d at p. 224, 110 S.Ct. at p. 2379] (opn. of Marshall, J.).) And Justice Stevens did not reach the constitutional question, but indicated in a footnote his continued allegiance to Lemon. (496 U.S. at p. _, fn. 21 [110 L.Ed.2d at pp. 237-239, 110 S.Ct. at pp. 2390-2391] (opn. of Stevens, J.).) Only Justices Kennedy and Scalia, adhering to the views the high court had rejected in County of Allegheny, supra, 492 U.S. 573, declined to apply Lemon. (Mergens, supra, 496 U.S. at p._ [110 L.Ed.2d at p. 222, 110 S.Ct. at p. 2377] (opn. of Kennedy, J.).) Notably, Chief Justice Rehnquist and Justice White, who had joined Justice Kennedy in calling for a reformulation of the law in County of Allegheny, joined Justice O’Connor’s opinion in Mergens applying Lemon.

Far from showing that the Lemon test cannot command five votes in the high court, the Mergens decision, in which seven justices expressed their adherence to Lemon, convincingly demonstrates Lemon’s continued vitality. In his concurring opinion, the Chief Justice denies that public prayers engage the listeners’ hearts and minds in a meaningful or potentially divisive way.

He suggests that public prayers should be upheld as constitutional because they may be perceived from the perspective of a detached critic of a cultural phenomenon or viewed as a “ ‘throwback to another day,’ ” and because references to God are “ ‘weak symbols’ ” and “ ‘ “almost an empty sign.” ’ ” (Post, at p. 895.) We decline to construe public prayer as essentially meaningless or trivial in order to find it inoffensive to the United States Constitution. We emphasize that this case concerns religious invocations and benedictions—that is, solemn public prayers.

Contrary to the implication of Justice Panelli’s dissent, neither the trial court’s injunction nor our holding will forbid the singing of “God Bless America” at public events. As commonly performed, such traditional patriotic songs no longer convey significant religious meaning. It cannot be convincingly argued that prayers convey no significant religious meaning. The record in this case does not disclose whether or not those attending the public high school graduation ceremonies understood the inclusion of prayers in the official program as conveying a message of governmental approval of religion.

But such evidence is not necessary. The United States Supreme Court has treated the issue of whether a practice has an impermissible effect as a question of law. For example, in County of Allegheny, supra, 492 U.S. 573, holding that the government’s display of a creche was an impermissible endorsement of religion, the high court did not rely on evidence of how any member of the public perceived the display.

Instead, the court determined as a matter of law that, by the manner in which it had displayed the creche, the government had lent its support to the communication of a religious message. (Id. at pp. 597-602 [106 L.Ed.2d at pp. 497-500, 109 S.Ct. at pp. 3103-3105]; see also Larkin v. Grendel’s Den, Inc. (1982) 459 U.S. 116, 125-126 [74 L.Ed.2d 297, 306-307, 103 S.Ct. 505]; Abington School Dist. v.

Schempp, supra, 374 U.S. at pp. 222-224 [10 L.Ed.2d at pp. 858-859].) Here, a reasonable observer would view the inclusion of graduation prayers in an official school ceremony as signifying approval of the practice of prayer and the prayer’s religious content. The message of sponsorship is unavoidable. Justice Panelli’s dissent relies extensively on dictum in Lynch v. Donnelly, supra, 465 U.S. 668, holding that a city may display a nativity scene during the holiday season. County of Allegheny, however, contains the more recent and thorough exploration of the issue.

In that case, the high court held that a nativity scene displayed on government property was unconstitutional because it communicated a religious message, and it declared that the establishment clause “at the very least, prohibits government from appearing to take a position on questions of religious belief . . . .” (County of Allegheny, supra, 492 U.S. 573, 594 [106 L.Ed.2d 472, 495, 109 S.Ct. 3086, 3101].) To the extent that Lynch and County of Allegheny are inconsistent, the latter case, for reasons just explained, provides more authoritative guidance on the federal establishment clause.

The official practice of including prayers in graduation ceremonies cannot be rendered acceptable by analogy to Mergens, supra, 496 U.S. 226. In Mergens, the United States Supreme Court upheld the Equal Access Act (20 U.S.C. §§ 4071-4074), which requires high schools to allow student-run religious clubs to meet on the same basis as chess clubs and political clubs.

The court observed that high school students are “mature enough ... to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis” (496 U.S. at p._ [110 L.Ed.2d at p. 216, 110 S.Ct. at p. 2372]), and it stressed that under the act “school officials may not promote, lead, or participate in any [high school religious club] meeting” (id. at p. [110 L.Ed.2d at p. 117, 110 S.Ct. at p. 2373]).

By contrast, in this case school officials do promote, lead, and participate in the religious ceremonies: they are directly and finally responsible for the selection of religious speakers at graduations, and in at least one instance a faculty member delivered the prayer. Here, therefore, the question is not whether high school students are mature enough to perceive that no endorsement is involved: when government-approved speakers lead students and faculty in prayer at an official school ceremony, endorsement is involved.

In his dissenting opinion, Justice Baxter concludes that some but not all of the invocations at the District’s graduation ceremonies were constitutionally impermissible, and he argues that “the court can fashion guidelines” for determining what is constitutionally permissible prayer for a public school graduation ceremony. Notably, however, Justice Baxter does not specify what those guidelines might be.

To establish and administer guidelines for acceptable public prayer would require a court to address at least these questions: Does the required diversity mean that each different sect of each religion be represented, or do only “major denominations” have a right to deliver prayers? Do clergy of what some might consider “fringe” religions possess a right to give invocations? If not, why not? And if so, how frequently? What references to a particular religion’s theology or doctrine are acceptable? Are some doctrinal references permissible but not others? Is a prayer that proselytizes acceptable?

If not, what is the line between judicially acceptable prayer and improper proselytizing? Justice Baxter’s approach would in effect make this court a standing committee on approved theology. This is a task for which we are, to say the least, not well equipped. Marsh, supra, 463 U.S. 783, is properly understood as deriving in part from the judiciary’s deference to the legislative branch in the management of that branch’s own internal affairs (see Van Zandt v. Thompson (7th Cir. 1988) 839 F.2d 1215, 1219), a deference not implicated in this case.

The Chief Justice suggests in his concurring opinion that by this statement the United States Supreme Court meant only that the Marsh analysis has no application to cases involving classroom instruction. We cannot accept this

interpretation. We presume that the high court chooses its words with care and precision, and that in this instance it meant what it said. According to the most recent edition of the World Christian Encyclopedia (Barrett ed. 1982), in 1980 the United States population included 7.25 million persons who belonged to the Jewish faith, 500,000 Hindus, almost 2 million Muslims, nearly 2 million members of other non-Christian religions, and 14.9 million people who identified themselves as nonreligious. (Id. at p. 711, table 1.)