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Max Dodge-Harkins
Professor Britt
Rhetoric of Law ENGL 3325
18 April 2014
Justice Kennedy’s Claims of Definition, Quality, and Procedure in Lee v. Weisman
In 1989, the principal of Nathan Bishop Middle School in Providence, Rhode Island,
Robert E. Lee, invited a Jewish rabbi to give a prayer at the school’s graduation ceremony. The
rabbi was provided with a pamphlet, which explained what was acceptable in terms of public
prayer at such occasions, and the pamphlet made it clear that the prayer should be nonsectarian.
The parents of Deborah Weisman, a student at Nathan Bishop Middle School, objected to the
prayer and filed a restraining order against the rabbi, in an attempt to prohibit the rabbi’s prayer
at the ceremony. However, their motion was denied by the Rhode Island district court because of
the lack of an appropriate amount of time to consider the case before the graduation ceremony.
Deborah and her family decided to attend the ceremony regardless, and the prayer was recited.
The rabbi did not heed the words of the pamphlet he was provided with, and his prayer included
the quote: “we give thanks to You, Lord, for keeping us alive, sustaining us, and allowing us to
reach this special, happy occasion” (Lee v. Weisman). Deborah Weisman and her family were
offended by the rabbi’s words, and as a result, in July of 1989, Daniel Weisman filed another
complaint concerning the rabbi’s prayer, in an attempt to prevent similar situations from
occurring at future graduation ceremonies. It went against the Weismans’ religion to be a part of
another faith’s prayer, and it also personally offended them because they believed that Deborah’s
hard work, and not God, caused her to graduate (Supreme Court Stakeout).
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Supreme Court Justice Anthony Kennedy voiced the majority opinion of the case, and his
opinion, through the lens of Stasis Theory, is the topic of my rhetorical analysis. Justice Kennedy
was appointed by Gerald Ford in 1987, and he previously served as Judge of the United States
Court of Appeals for the Ninth Circuit. Justice Kennedy is known as a ‘swing vote’ in the
Supreme Court, and his “often controversial votes have seemingly placed him at or near the
center of gravity in the uncertain politics of the Supreme Court” (209 Schmidt and Yalof).
Initially, Justice Kennedy was expected to vote differently in Lee v. Weisman because of his
conservative political views, but he has shown himself to apply the ideology of pragmatism in
his decision making, instead of relying on rigid political ideologies (Schmidt and Yaolf).
Pragmatism is an ideology based upon the maxim of logic, and “pragmatism… does not insist
upon antecedent phenomena but upon consequent phenomena; not upon the precedents but upon
the possibilities of action. And this change in point of view is almost revolutionary in its
consequences… [W]hen we take the point of view of pragmatism we see that general ideas have
a very different role to play than that of reporting and registering past experiences. They are the
bases for organizing future observations and experiences” (Cherryholmes 1). Justice Kennedy’s
pragmatism directly relates to how he defines and explains Lee v. Weisman: other Supreme Court
justices might utilize stare decisis, but Kennedy analyzed the specific circumstance of the Nathan
Bishop Middle school graduation, and he determined that in this particular situation the
Weismans were justified in their complaint (Schmidt and Yalof).
Through his pragmatist approach, Justice Kennedy argues that students of Nathan Bishop
Middle School were not necessarily required by the state to attend the ceremony to acquire their
diplomas, but “for those students who object to the religious exercise, their attendance and
participation in the state-sponsored religious activity are, in a fair and real sense, obligatory”
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(Lee v. Weisman). High school and middle school graduation is a time of happiness and
celebration for a student, and Kennedy asserts that to expect a student not to attend their
graduation because of a prayer that they may find offensive is not reasonable. The basis for his
argument is that because of the conventions of graduations in America Weisman had no choice
but to attend her graduation and be offended by the prayer. Furthermore, Kennedy argues that
“the undeniable fact is that the school district's supervision and control of a high school
graduation ceremony places public pressure, as well as peer pressure, on attending students to
stand as a group or, at least, maintain respectful silence during the Invocation and Benediction”
(Lee v. Weisman). According to Kennedy, not only is Weisman forced to hear the prayer during
her graduation, she is also, because of societal norms, expected to stand and therefore participate
in the prayer, which conflicted with her own religious beliefs.
Prior to Lee v. Weisman reaching the Supreme Court, the District Court decided that
prayer during the public school graduation violated the Establishment Clause because it did not
pass the test put forth by Lemon v. Kurtzman (Lemon v. Kurtzman). The ‘Lemon Test’ consists
of three parts, each of which must be satisfied to ensure that the Establishment Clause of the
Constitution is not violated. First, the prayer must “reflect a clearly secular purpose,” second it
must “have a primary effect that neither advances nor inhibits religion,” and finally, it is required
to “avoid excessive government entanglement with religion” (Hughes 20). The court decided that
that second part of the test was not satisfied, and therefore that the “public school graduation
creat[ed] an identification of governmental power with religious practices, endors[ed] religion,
and violat[ed] at the Establishment Clause” (Lee v. Weisman). The United States Court of
Appeals affirmed this decision. Finally, the case was taken under consideration by the United
States Supreme Court, and they ruled in favor of Weisman with a vote of 5-4 (Lee v. Weisman).
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In his analysis of the Lee v. Weisman case, Justice Kennedy refuses to utilize the ‘Lemon
Test’ because, despite the fact that the example of prayer cannot pass the test, it is not sufficient
in determining the case. In his opinion, Kennedy writes that “we can decide the case without
reconsidering the general constitutional framework by which public schools’ efforts to
accommodate religious are measured,” in reference to the Lemon Test (Lee v. Weisman). Justice
Kennedy redefines the use of the Lemon v. Kurtzman precedent, in Lee v. Weisman, because he
believes it is too simplistic for the specific situation. The Lemon v. Kurtzman case provides a
vague outline of what is and is not acceptable in terms of prayer at graduation ceremonies, but
Justice Kennedy argues that is it not sufficient for determining the case.
Justice Kennedy asserts that “the government involvement with religious activity in this
case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise
in a public school. Conducting this formal religious observance conflicts with settled rules
pertaining to prayer exercises for students, and that suffices to determine the question before us”
(Lee v. Weisman). Instead, Kennedy puts forth a ‘coercion standard’, stating that the
“Constitution guarantees that government may not coerce anyone to support or participate in
religion or its exercise, or otherwise act in a way which establishes a [state] religion or religious
faith, or tends to do so” (Lee v. Weisman). Justice Kennedy uses four specific facts to prove that
the school coerced the students into hearing and being affected by the prayer: first, that the
principal decided that the invocation should be given, second, that the principal chose the rabbi,
third, that the principal, and therefore the school, controlled the content of the prayer, and lastly
that student attendance in this school-sponsored event was essentially obligatory, despite the
school’s policy that allows students’ nonattendance (Lee v. Weisman).
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Stasis Theory can be applied to Justice Kennedy’s opinion through his claims of
definition, quality, and procedure. There is no argument over the stasis of fact; all parties
involved agree that the prayer occurred. Stasis Theory is a rhetorical approach which “seeks to
classify rhetorical problems (declamation themes, or real forensic and deliberative situations)
according to the underling structure of the dispute that each involves (Heath 114). Stasis Theory
assists rhetoricians in analyzing texts through determining the author’s arguments, based on level
or stasis, and conclusions. There are four levels of stasis in which arguments can be made and
debated: fact, definition, quality, and procedure. Ancient rhetors utilized Stasis Theory to
determine the point of contention in arguments and disagreements: did an event occur, fact, how
the act or event can be defined, definition, what is the character of the act, quality, and what
action should be taken, procedure. For example, in the case of a man stealing an apple from a
grocery cart, one might ask ‘did the incident occur?,’ stasis of fact, ‘is stealing an apple from a
grocery cart theft?,’ stasis of definition, ‘is stealing an apple from a cart a good or a bad thing, or
is the man somehow justified in doing it?,’ stasis of quality, and finally ‘should the man be
punished, and how should he be punished?,’ stasis of procedure. Once the stasis of fact is
determined, the rhetor moves on to definition and so on, until the root of the dispute is
determined. In the example of apple theft, since the man did indeed steal the apple, fact, taking
an apple from a cart is theft, definition, stealing an apple is bad and the man had no justification
for his theft, quality, and so he should be punished in accordance with the law, procedure. In this
example, one can only argue in terms of the severity of the man’s punishment, since there is no
disagreement about the act itself, how the act is defined, or the character of the act.
Justice Kennedy makes claims of definition, quality, and procedure in the situation of the
graduation ceremony at Nathan Bishop Middle school. There is no argument at the stasis of fact
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in this case; no party disagrees that the graduation and the prayer occurred. In Kennedy’s
opinion, he writes that “this pressure [to respectfully observe the prayer], although subtle and
indirect, can be as real as any overt compulsion,” and that “for the dissenter of high school age,
who has a reasonable perception that she is being forced by the state to pray in a manner her
conscience will not allow, the injury is no less real” (Lee v. Weisman). Utilizing his pragmatic
approach, Kennedy makes a claim of definition through his assertion that all students were
required to attend the graduation ceremony: he specifically defines the word ‘optional,’ and
states that attendance of the graduation was obligatory because of societal norms, and therefore
not optional.
Through his claim of definition, Justice Kennedy is able to change the perception that
standing for a prayer is voluntary and unimportant, to the reality of the situation, in which
members of the audience were compelled to stand and take part in a prayer that could potentially
conflict with their own religious beliefs or personal opinions. This act by Kennedy is a perfect
example of his pragmatism: he analyzed the situation using logic and, with limited political bias,
determined that people were suffering because of the obligatory nature of public school
graduation ceremonies. With Justice Kennedy’s claim of definition, he emphasizes that ”one
timeless lesson [of the First Amendment] is that, if citizens are subjected to state-sponsored
religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable
conscience and belief which is the mark of a free people” (Lee v. Weisman). The state, Nathan
Bishop Middle School, is exclusively catering to the religious attendees, while simultaneously
alienating the constitutional rights of the nonreligious attendees. The right of citizens of the
United States of America to freedom of religion and prayer cannot supersede the rights of
citizens to not experience such religion and prayer if it is state-sponsored.
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The ‘coercion standard’ that Kennedy puts forth relates directly to his claim of quality.
Kennedy proceeds from his claim of definition, graduation attendance as being obligatory, to a
claim of quality, with which he condemns compulsory attendance at graduation ceremonies.
Justice Kennedy’s claim of quality goes further to assert that the state coercing students and their
families into attending graduation ceremonies, in which a prayer is given, is completely
unacceptable and unconstitutional. Kennedy’s claim of quality is another example of his
pragmatism, instead of looking to past cases to determine his decision he utilizes logic and the
specifics of the situation to come to his conclusion. Kennedy continues from his claim of quality
to a claim of procedure: since the attendees of the graduation were coerced to attend the
graduation ceremony and therefore participate in the prayer, legal action needed to be taken.
Justice Kennedy identifies that since the students were being coerced, and coercion of students
by the state is negative, that religious prayers at public school events should not occur ever again.
He asserts that “the sole question presented is whether a religious exercise may be conducted at a
graduation ceremony in circumstances where, as we have found, young graduates who object are
induced to conform. No holding by this Court suggests that a school can persuade or compel a
student to participate in a religious exercise. That is being done here, and it is forbidden by the
Establishment Clause of the First Amendment” (Lee v. Weisman). Through Kennedy’s claims of
definition, quality, and procedure he proves that the students were coerced, the coercion should
not occur, and that legal steps need to be taken to ensure the state’s coercion does not occur in
similar circumstances in the future.
Justice Kennedy’s claims of definition and quality identify the exigence in the situation at
the Nathan Bishop Middle School graduation. Exigence is defined as “an imperfection marked
by urgency; it is a defect, an obstacle, something waiting to be done, a thing which is other than
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it should be” (203). The specific imperfection and exigence of the graduation ceremony was the
discomfort of the Weisman family and their lack of ability to change the prayer in the moment.
The prayer conflicted with the Weisman’s religion as well as their personal views of what is
acceptable in terms of speeches at a middle school graduation (Supreme Court Stakeout). In this
situation, the State, the principle of Nathan Bishop Middle School, had a duty to eliminate the
exigence for the Weisman family and their peers, but the rabbi still gave the prayer, so the
principle was remiss in his duty. Rhetoric serves to remedy or exacerbate the exigence of any
given situation, and although Justice Kennedy cannot influence the exigence of the graduation
ceremony of the Nathan Bishop Middle school, since the event already occurred, he attempts to
eliminate all exigencies from future graduation ceremonies.
The opposing viewpoint to Justice Kennedy’s, including Supreme Court Justice Scalia’s
dissent, asserts that religion is a longstanding tradition in the culture and history of the United
States, and that to infringe upon the right to religious activities is at odds with the Constitution.
In Justice Scalia’s Dissent, he argues that “in holding that the Establishment Clause prohibits
invocations and benedictions at public school graduation ceremonies, the Court — with nary a
mention that it is doing so — lays waste a tradition that is as old as public school graduation
ceremonies themselves” (Lee v. Weisman). Justice Kennedy completely disagrees with Scalia’s
Dissent, and through his claims of definition and quality, he describes the situation not as
”lay[ing] waste to a tradition as old as public school graduation ceremonies,” but instead as the
state forcing middle school students and their families into a situation that offends them and is at
odds with their religion (Lee v. Weisman). Kennedy stresses that “the principle that the
government may accommodate the free exercise of religion does not supersede the fundamental
limitations imposed by the Establishment Clause” (Lee v. Weisman). Kennedy takes the opposing
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viewpoints into account when he writes his opinion, another example of his pragmatism, and his
claims of definition and quality he specifically redefines what the dissenters assert.
The result of the landmark Lee v. Weisman case affected the entirety of the United States
of America, and therefore the case and Kennedy’s opinion had a national audience. The Supreme
Court Decision showed that state-sponsored religious activities during graduation ceremonies are
unconstitutional. Any prayer given at such an event would fail the ‘coercion test’ that the court
put forth: it is unconstitutional to subject a captive audience to religious prayer that they might
find offensive, specifically when they have no realistic or respectful means to bring themselves
out of the situation in their social context (Hughes). Religious activities that take place at public
schools are considered more significant than in most other settings because of “the perceived
significance of schools in shaping the values of young people” (Essex 19). Lee v. Weisman
forced schools to adopt very strict religious policies on a national level, despite the fact that
“prayer at graduation exercises is a highly charged emotional issue” (Essex 19). This coercion
that the State forces upon the Weismans, and the other members of the Nathan Bishop Middle
School graduation ceremony, is precisely what makes the prayer at such ceremonies
unconstitutional. Kennedy specifically defines this coercion as being negative through his claim
of quality: it is unconstitutional for a student to be forced to attend his or her graduation
ceremony, and then be required to participate in a prayer, which could conflict with his or her
religion. In addition, there is a fundamental problem engendered by the prayer being held at a
school versus other public places. An audience member of a prayer being held in a mall, for
example, could easily bring himself or herself out of that situation if he or she finds it offensive,
but Kennedy asserts such is not the case at public school graduation ceremonies.
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Lee v. Weisman affected many future court decisions regarding religion. In the 1993
Federal Court decision Harris v. Joint School District No. 241, high schools seniors were
allowed to vote on whether or not they wanted prayer recited at their high school graduation. The
Supreme Court used the Lee v. Weisman decision as precedent, and ruled that this was
constitutional because “the senior graduating students themselves, rather than the faculty or
administrators, determined every element of the graduation and ‘the record demonstrat[ed] that
faculty and administrators [had] little or no involvement in that process’” (Schweitzer 297). The
students were not coerced by the school participate in the prayer: they were allowed to vote, and
therefore they were part of the decision to include prayer in their graduation ceremony. The
students’ right to vote separates this case from Lee v. Weisman. However, in the 1994 Federal
Court case of ACLU of New Jersey v. Black Horse Pike Regional Board of Education, the court
ruled in favor of no prayer at the high school graduation because the case was “essentially
indistinguishable from Lee” (300). In terms of future cases, the Lee v. Weisman decision made it
clear that there is no single answer in terms of school prayer at graduations, and similarly there is
no single test, such as the Lemon Test, to determine whether or not prayer is admissible at
specific occasions. It is entirely dependent upon the specific situation: since public schools
coerce students into attending their own graduation, they cannot force prayer upon them, but if
the school allows a vote then it is constitutional. Justice Kennedy’s claims of definition and
quality make it clear when prayer at graduations is admissible and when it is not.
Justice Kennedy defines the Nathan Bishop Middle School graduation as not being
optional, for students, through his claim of definition. He further defines this coercion of
students, by the state, as unconstitutional, negative, and as requiring immediate legal
rectification, through his claims of quality and procedure. He contends that the rabbi’s recitation
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of the prayer, at the ceremony, was not an act of religious freedom, but an affront to members of
the audience who found the prayer offensive. Justice Kennedy was aware that the situation was
being perceived as a loss of the right to give a prayer at public events, but he shifted this
perception through his pragmatic ideology and the application of this ideology through his
claims of definition, quality, and procedure. He asserts that audience members were coerced, by
the state, into both hearing and participating in the prayer, and that this was unconstitutional. By
changing perception of the events, he therefore illuminates the exigence of the situation, and he
attempts to prevent a similar exigence from occurring again, revealing to others the potential
harm and illegality of prayer at such events. Justice Kennedy’s opinion set a precedent that has
since been utilized by numerous courts in determining if public prayer is appropriate.
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