Kay v. David Douglas School District No. 40 , 79 Or. App. 384 ( 1986 )

BUTTLER, P. J.

In this action for declaratory and injunctive relief premised on the state and federal constitutions and 42 USC § 1983, defendants appeal from a judgment enjoining them from sponsoring, permitting or encouraging the inclusion of formal prayer in the invocation and benediction at the commencement exercises of the David Douglas High School class of 1984, and awarding attorney fees to plaintiffs.¹ The trial court held that the inclusion of the proposed prayer would violate Article I, sections 2, 3, and 5 of the Oregon Constitution and the First Amendment to the United States Constitution. We hold that the inclusion of the invocation would have violated Article I, sections 2 and 5, of the Oregon Constitution, and affirm.²

During the 1983-84 school year, plaintiffs Kay, Strieby, Deibele, and Epstein were seniors at David Douglas, expecting to be graduated with the class of 1984 and desiring to participate in the commencement to be held on May 23, 1984, at the Portland Civic Auditorium. Plaintiff Disselbrett is the mother of plaintiff Epstein and a taxpayer in the David Douglas school district.

Defendant Utz, principal of the high school since 1973, testified that, to his knowledge, the school always has had a prayer-like invocation at its commencement. He said that the purpose of the commencement ceremony is to honor seniors and not to promote religion. Defendant Reese, chairman of the David Douglas School District School Board, agreed with Utz that the purpose of the commencement is ceremonial rather than religious. He stated that the decision was made to include the religious invocation, because it is a traditional part of the ceremony and because a majority of those taxpayers who had spoken to him had expressed the desire to maintain that tradition. One hundred seventy-eight seniors signed a petition in support of the “traditional” ceremony.

The school district rented the Portland Civic Auditorium for the commencement at a rental of $1,450. The ceremony was planned by school personnel, on school time. The proposed program began with a processional march to “Pomp and Circumstance,” followed by the flag salute and the invocation. Utz testified that the program was planned with the view of creating an atmosphere of dignity and solemnity and that the invocation is included for that purpose. He agreed that that objective could be accomplished by many other means that would not involve a religious invocation, such as an appropriate reading from Shakespeare, Tennyson or other writers.

In years past, members of the clergy had been invited to give the invocation; recently, however, the board had selected retired school teachers who were particularly close to students, or senior teachers. The invocation for 1984 was written by Mrs. Fredrickson, a counselor and teacher of advanced English, who was to deliver it. There is evidence that she was not restricted as to its content,³ and the one that she prepared is very similar to those that had been used in the past.

Attendance at commencement is voluntary. Students need not be present to receive their diplomas or awards. However, it is a ceremony in which every student is entitled to participate fully, regardless of his or her religious faith or absence of religious faith. Some of the highest awards that a member of the senior class can receive are announced at the commencement.

Kay, valedictorian of his class, attended a school board meeting on April 19, 1984, at which he and two other students urged the board not to include a vocal prayer, but to include instead a moment of silence or an appropriate reading from literature. He suggested that those who wished a religious ceremony could hold a separate baccalaureate at an area church. The board rejected that proposal and adopted a resolution directing the superintendent and principal to “include an invocation, benediction and choral music appropriate to the occasion.” It is agreed that the invocation written by Fredrickson was the invocation to be read at the ceremony, that it is a prayer and that its reading would be a religious activity.

This case was argued under the Oregon and federal constitutions. We consider the Oregon constitutional questions first. State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983). Plaintiffs contend that the inclusion of the religious invocation would have violated Article I, section 5, of the Oregon Constitution:

“No money shall be drawn from the treasury for the benefit of any religeous [sic] or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly.”

Defendants contend that no money was actually spent on the invocation, because the teacher who prepared and was scheduled to read it volunteered her time. The school district paid $1,450 from public funds to the city of Portland for use of the auditorium, and faculty time was devoted to the planning of the ceremony. The fact that money spent on the preparation and delivery of the invocation was not apportioned and identified as a “line item” in the budget does not take it out of the proscription of section 5, which prohibits the spending of any money for the benefit of any religious or theological institution. We need not decide whether the minimal expenditure of public funds, by itself, would have violated section 5, see Dickman et al v. School Dist. 62C et al, 232 Or 238, 366 P2d 533 (1961), cert den 371 US 823 (1962), because we believe that the broader concept encompassed within that section of maintaining the wall of separation between church and state and of proscribing the establishment of religion would have been violated. We note, however, that section 5 expressly prohibits the appropriation of any money “for the payment of any religeous [sic] services in either house of the Legislative Assembly.”

The Supreme Court has interpreted section 5 as far more than a mere prohibition of direct government financial support of a specific church-related institution. In Lowe v. City of Eugene, 254 Or 518, 451 P2d 117, 459 P2d 222, 463 P2d 360 (1969), cert den 397 US 1042 (1970), the court held that the prohibition of section 5 applied to the city’s permitting the maintenance of a Latin cross in a public park, even though no money had been spent by the city. The court reasoned that the display of the cross permitted “an inference of official endorsement of the general religious beliefs which underlie that symbol.” 254 Or at 544. It further stated, citing United States Supreme Court cases, that “the government has no business placing its power, prestige, or property at the disposal of private persons or groups either to aid or oppose any religion.” 254 Or at 545.

Although the Oregon Constitution contains no specific “credal preference” or “establishment” clause, the court reasoned that “it is obvious that the founders of this state did not intend to permit the state to sponsor any particular religion.” 254 Or at 547. For that reason, the court stated, Article I, section 5, was included in the Oregon Constitution. In holding that permitting the placing of a cross in a public place violated that provision, the court stated:

“It is not the emblem of a religious belief which is objectionable under the state and federal constitutions; it is the enlistment of the hand of government to erect the religious emblem which offends the constitutions.” 254 Or at 548.

Both Lowe and Dickman illustrate that Article I, section 5, has been regarded as Oregon’s Establishment Clause and has been treated as expressing the state’s commitment to a separation of church and state.

Some years later, in considering the same cross in the same park under different facts, the Supreme Court once again addressed the application of the Oregon Constitution to the separation of church and state, particularly Article I, section 5. Eugene Sand & Gravel v. City of Eugene, 276 Or 1007, 558 P2d 338 (1976).⁴ In determining the constitutionality of the city’s conduct, the court adopted the three-part test established by the United States Supreme Court in Lemon v. Kurtzman, 403 US 602, 91 S Ct 2105, 29 L Ed 2d 745 (1971), for determining violations of the Establishment Clause of the First Amendment to the United States Constitution. The Court stated that religious activity engaged in by the government will violate the Oregon Constitution, unless (1) the conduct reflects a clearly secular purpose; (2) it has a primary effect (as distinguished from an “incidental” effect) that neither advances nor inhibits religion; and (3) it avoids excessive government entanglement with religion. Although the United States Supreme Court has departed from the three-part test in one “unique” case, Marsh v. Chambers, 463 US 783, 103 S Ct 3330, 77 L Ed 2d 1019 (1983), it has since reiterated its adherence to the test in a school prayer case. Wallace v. Jaffree, 472 US_, 105 S Ct 2479, 86 L Ed 2d 29 (1985). We conclude that it is applicable here in assessing the school district’s conduct under the Oregon Constitution.⁵

The test should be viewed and applied within the broader framework of law that has developed around the Establishment Clause of the First Amendment. In Walz v. Tax Commissioner, 397 US 664, 668, 90 S Ct 1409, 25 L Ed 2d 697 (1970), the Court stated that the clause affords protection against sponsorship, financial support and active involvement of the sovereign in religious activity. A frequently quoted summary of the proscriptions is contained in the concurring opinion of Abington School Dist. v. Schempp, 374 US 203, 83 S Ct 1560, 10 L Ed 2d 844 (1963):

“* * * What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice. * * *” 374 US at 294.

The courts have acknowledged and wrestled with the fact that religion is, and historically has been, a strong element of American life. As defendants contend, not all governmental references to a god are prohibited. See Lynch v. Donnelly, 465 US 668, 104 S Ct 1355, 79 L Ed 2d 604 (1984). History and tradition weigh heavily in a consideration of the extent to which government acknowledgment of religion may be incorporated in public ceremonies. In one case, Marsh v. Chambers, supra, the United States Supreme Court employed an exclusively historical analysis in considering the constitutionality of a religious invocation at the opening of the Nebraska legislature. Article I, section 5, appears to sanction that practice in the Oregon legislature, so long as no funds are appropriated for it. Certain practices involving references to a god or having a religious origin have acquired over time nonreligious significance and have become a part of our national heritage and have taken on patriotic significance, such as the phrase “In God We Trust” that appears on coins. Also, the government has, from time to time, accommodated the religious practices of individuals, such as by the creation of a national holiday on December 25. Such an accommodation must, however, be distinguished from sponsorship or the conveyance of a message of government endorsement or approval of religion.

Here, witnesses for the school board testified that the religious invocation was chosen in order to adhere to school tradition and to create an atmosphere of dignity and solemnity. They insist that the decision to include the prayer was not motivated by the desire to promote any particular religion or religion in general. There is also evidence, however, that the decision to include the prayer was motivated primarily by a desire to satisfy the wishes of a majority of the students and taxpayers, who, in turn, desired a religious invocation. If this was, in fact, the motivation, it is subject to the same attack on constitutional grounds as a decision made on purely religious grounds. See Lowe v. City of Eugene, supra, 254 Or at 546. The school board’s decision to include a prayer instead of a nonreligious reading that could have accomplished the alleged secular objectives is also an indication that the purpose for including the prayer was religious, not secular. Abington School Dist. v. Schempp, supra, 374 US at 294. In any event, no matter what the subjective intent of the school board, prayer by its nature is religious; accordingly, the purpose for which a prayer is given necessarily must be religious. It would be a contradiction in terms to say that the giving of a prayer has no religious purpose.

We also believe that the effect of the prayer here was to create the impression that government was sponsoring or endorsing religion. For many students and parents, commencement is the most significant high school experience. It is long anticipated and involves much planning. Awards and special honors are presented and a great effort is made to create a memorable occasion. As defendants have emphasized, the invocation is a part of the ceremony; it sets the tone for the entire occasion. More than creating an atmosphere of dignity and solemnity, the inclusion of a religious invocation at the beginning of the ceremony would have created, from an objective standpoint, the impression that the school district assigned special significance to prayer. The fact that the invocation was to be read by a senior teacher could have intensified that impression. The school district’s affirmative decision directing that a prayer, rather than some other appropriate non-religious statement or reading, be included in this important school event conveyed the message that it had given its endorsement to prayer and to religion. The inclusion of the prayer would have crossed the line from the accommodation of religion to an impermissible appearance of sponsorship. It matters not that attendance at the ceremony is voluntary, as defendants emphasize. Such a defense is not relevant to a challenge under the Establishment Clause. Engel v. Vitale, 370 US 421, 430, 82 S Ct 1261, 8 L Ed 2d 601 (1962).

The school board’s action in directing the superintendent and principal of David Douglas High School to include the religious invocation required plaintiffs, including the class valedictorian, as well as other students, to choose between attending the ceremony or staying away. That action was in violation of Article I, section 5, of the Oregon Constitution.⁶

The amicus brief contends that the rights of students who wished to express their faith through prayer are protected by the First Amendment to the United States Constitution. The Oregon Constitution contains a similar provision. Or Const, Art I, § 8. There is no doubt that one has the right to worship as one sees fit. However, we know of no authority that permits one, or even a majority, to require that a commencement exercise be opened with a vocal, public prayer. The argument does point out an important aspect of the problem: whether, how and when to pray is not, and should not be, a political question determined by majority vote. As the court said in Lowe v. City of Eugene, supra:

“Religious freedom and majority rule must live side by side. The majority, no matter how pure its intentions, has no right under our system of government to exert its political muscle to gain a preferred place for its testimony to its religious beliefs.” 254 Or at 546.

In any event, in this case no students have asserted that their rights were so violated, so the question is not presented.

Defendants assign error to the trial court’s award of attorney fees to plaintiffs, arguing first that an award of attorney fees is not proper, because the trial court did not properly reach the federal question on which the award of attorney fees is based. (42 USC § 1983; 42 USC § 1988⁷). The trial court held for plaintiffs on both state and federal grounds. Whether the court was required to address Oregon law first does not alter the fact that plaintiffs prevailed on their federal claim. However, even if they had not so prevailed, they would not have been precluded from an award of attorney fees under section 1988. Plaintiffs have prevailed on a constitutional claim that was factually identical to their federal civil rights claim, justifying an award of attorney fees under section 1988, which applies in state as well as federal courts. Maine v. Thiboutot, 448 US 1, 100 S Ct 2502, 65 L Ed 555 (1980); Filipino Accountants’ Ass’n v. State Bd. of Accountancy, 155 Cal App 3d 1023, 204 Cal Rptr 913 (1984); see Maher v. Gagne, 448 US 122, 132 n 15, 100 S Ct 2570, 65 L Ed 2d 653 (1980).

Defendants argue that, before plaintiffs are entitled to recover attorney fees under section 1988, there must have been a violation of rights. Here, it is argued, there has been no violation, because defendants complied with the court’s order enjoining them from including the prayer in the ceremony. Defendants overlook the fact that the purpose of this action was to prevent a violation of the rights that plaintiffs asserted, and that, but for the injunction issued in this action, there would have been a violation of those rights. Section 1988 provides for attorney fees to the prevailing party in any action brought under section 1983, and that includes an action to enjoin proposed unconstitutional state action. Fitzharris v. Wolff, 702 F2d 836 (9th Cir 1983). We need not decide whether the state may be compelled to award attorney fees; it is enough that the federal statute authorizes them here, even though there is no state statute authorizing them. We cannot say that the trial court abused its discretion in awarding plaintiffs attorney fees.

Finally, defendants assert that plaintiffs have failed to plead a basis for the award of attorney fees as required by ORCP 68(C)(2):

“A party seeking attorney fees shall assert the right to recover such fees by alleging the facts, statute, or rule which provides a basis for the award of such fees in a pleading filed by that party. * * *”

In their complaint, plaintiffs alleged violations of section 1983, and then alleged that they were entitled to attorney fees; they pled no specific statutory basis or legal theory that would support the award.

Although plaintiffs might not have been entitled to attorney fees if this action had been brought only under state law, the right to attorney fees under section 1988, although a “part of the costs,” is regarded by the United States Supreme Court as “an integral part of the remedies necessary to obtain” compliance with section 1983. Maine v. Thiboutot, supra, 448 US at 11. The right to attorney fees need not be alleged in the pleadings in an action brought in federal court. White v. New Hampshire Dept. of Empl. Sec., 445 US 445, 102 S Ct 1162, 71 L Ed 2d 325 (1982).

When federal claims are brought in a state court, state procedures ordinarily control. Brown v. Western R. of Alabama, 338 US 294, 296, 70 S Ct 105, 94 L Ed 2d (1949). Here, however, we are not prepared to say that the right to attorney fees under section 1988 is strictly a matter of procedure. See Long v. Storms, 52 Or App 685, 629 P2d 827 (1981). The United States Supreme Court has made the provisions of section 1988 applicable in state courts. Maine v. Thiboutot, supra. ORCP 68, if applied to the federal claim for attorney fees, would do more than implement state procedure; it would impose a pleading requirement for the recovery of attorney fees that is not present in the federal law. In Brown v. Western of Alabama, supra, 338 US at 298, the Court stated that “[s]trict local rules of pleading cannot be used to impose unnecessary burdens upon rights of recovery authorized by federal laws” and that uniformity of adjudication of federally created rights could not be achieved “[sjhould this court fail to protect federally created rights from dismissal because of overexacting local requirements for meticulous pleadings.” Here, plaintiffs clearly alleged claims under section 1983, among others, and also alleged entitlement to attorney fees, an integral part of their remedy. Defendants were not prejudiced.

Affirmed.

1 The 1984 commencement took place as scheduled, without a religious invocation or benediction. This appeal is not moot, however, because the award of attorney fees is predicated on plaintiffs’ entitlement to an injunction. Additionally, we retain jurisdiction, because the problem here is one “capable of repetition, yet evading review.” OSAA v. Stout, 71 Or App 405, 692 P2d 633 (1984).

2 The parties are in agreement that the proposed invocation is a religious prayer:

“Let us pray:

“Our God the sustainer of our lives, we ask your presence here with us tonight and give you thanks for the possibilities you open to us for fuller, richer lives. As we honor these graduates who are ending one phase of their education, we are grateful for their accomplishments and for the families, teachers, friends who have helped them arrive at this point. We ask for your continued care and guidance as they go forth to new experiences. Enable these young people to face the future with courage and determination to find ways to create a better world for us all. Expand their visions; help them to follow their dreams and to live satisfying lives in the world of peace.

“Bless each of us as we celebrate this night and keep us ever mindful of your goodness to us.

“Amen.”

They do not appear to argue over the content of the proposed benediction:

“I want to speak well of education. The real test of education is how we live as individuals and as groups. If we cherish hatred and antagonism, our education has failed. When is a man educated? When he knows how to live, how to love, how to hope. Of all the forces that make for a better world, none is so indispensable, none so powerful, as hope. Without hope men are only half alive. With hope men dream and think and work. Graduates, help make a better world.”

3 However, Utz conceded that, if a Roman Catholic mass had been proposed, he would have honored the objection of a single dissenter. Clearly, there was some control of content, contrary to the statement of the dissent. 79 Or App at 402.

4 The cross had not been removed. Subsequent to the court’s decision in Lowe v. City of Eugene, supra, a complaint was filed alleging that circumstances had changed materially, in that the voters of the city had approved an amendment to the city’s charter accepting the cross as a gift and dedicating it as a memorial or monument to United States war veterans. The court, in Eugene Sand & Gravel v. City of Eugene, supra, considered the constitutionality of the display of the cross under those “changed circumstances” as if it were a different case from that presented in Lowe. It held that there was no constitutional violation, because the purpose of the display had become strictly secular, any effect to advance or inhibit religion was remote or incidental and there was no excessive entanglement by the city.

5 A later change in federal interpretation would not have affected Oregon’s interpretation of its constitution. State v. Caraher, 293 Or 741, 653 P2d 942 (1982).

6 It also violated Article I, section 2:

“All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.”

Clearly, “the natural right to worship Almighty God,” protected by Article I, section 2, includes the right not to worship. As Lafayette Grover, the chairman of the committee on the bill of rights at Oregon’s Constitutional Convention in 1857, stated:

“It is true that this constitution goes a step farther than other constitutions on this subject; but if that step is in the right direction, and consistent with the proper development of our institutions, I see no weight in the objection that it is new. Let us take the step farther, and declare a complete divorce of church and state.” Carey, The Oregon Constitution 302 (1926).

7 Section 1983 provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

Section 1988 provides:

“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”