Copyright © Trustees of Boston University 1993.
Boston University Law Review
PSYCHO-COERCION, A NEW ESTABLISHMENT CLAUSE TEST: LEE V. WEISMAN AND ITS INITIAL EFFECT
73 B.U.L. Rev. 501
Paula Savage Cohen
In Lee v. Weisman, 1 the Supreme Court addressed the constitutionality of nonsectarian prayer at public school graduation ceremonies. For twenty years, the Supreme Court's tripartite test developed in Lemon v. Kurtzman 2 has guided analysis of government involvement in religious activities. 3 Petitioners in Weisman - the principal of Nathan Bishop Middle School, Robert E. Lee, and the Providence School Committee - joined by the United States as Amicus Curiae, asked the Court not only to permit benedictions at public school graduation ceremonies, but also urged the Court to overturn Lemon. 4
The Supreme Court did not expressly overturn Lemon. Rather, in a five-to-four decision, 5 it ignored the Lemon test 6 and adopted a new standard, which Justice Scalia, in his dissent, dubbed the "psycho-coercion" test. 7 The Court held that nonsectarian prayer at public school graduation ceremonies violates the Establishment Clause by psychologically coercing students to participate in prayer. 8
This Case Comment focuses on the flaws of the Weisman decision. It argues that the Court's adoption of the vague psycho-coercion test leads to further confusion of Establishment Clause doctrine. Part I discusses the facts of Weisman and the case's procedural history. Part II outlines prior Establishment Clause tests, specifically the Lemon test, the endorsement test, and a "pure" coercion test, all of which the Weisman majority largely ignored. Part III examines the majority, concurring, and dissenting opinions in Weisman. Finally, Part IV critiques the Supreme Court's adoption in Weisman of an ...
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