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Supreme Court bans student-led prayer at football games

By Tony Mauro
Special to freedomforum.org

06.19.00

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In its most significant school prayer ruling in years, the Supreme Court today ruled that Texas public schools may not begin football games with organized prayer, even when recited by a student.

The decision marked a turning point in the Supreme Court's 40-year struggle to draw the line between church and state in the public school setting. After sending signals that it was ready to allow greater religious involvement in schools, the conservative court today tacked back toward a more separationist approach.

The 6-3 decision was a blow to the religious right that is likely to reinject the high court into presidential politics. Texas Gov. George W. Bush, the presumed Republican candidate, actively supported the Santa Fe, Texas, school district in its fight to foster football prayer.

Late today, Bush said of the decision, "I support the constitutionally guaranteed right of all students to express their faith freely and participate in voluntary student-led prayer."

But the Supreme Court majority cast the football prayer as a school-endorsed prayer, rather than a voluntary expression of religious views.

Justice John Paul Stevens objected most of all to the district's "majoritarian process" of allowing students to elect one of their own to give a season's worth of football-game messages. That, said Stevens for the majority, "guarantees that minority candidates will never prevail and that their views will effectively be silenced."

Stevens added, "School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents that they are outsiders, not full members of the political community."

Chief Justice William Rehnquist, in an angry dissent joined by Justices Antonin Scalia and Clarence Thomas, said the majority opinion "bristles with hostility to all things religious in public life."

The ruling in Santa Fe Independent School District v. Doe suggests a recommitment by the Court to the strict "Lemon test" for evaluating church-state cases, following a 15-year-long flirtation by conservative justices with adoption of a standard that would be more accommodating to religious practices. Justices Anthony Kennedy and Sandra Day O'Connor, who had both expressed doubts about the 1971 Lemon v. Kurtzman decision, appear now to be reconciled to it.

Rehnquist lamented that the majority in Santa Fe had applied "the most rigid version" of the Lemon test, which uses factors of secular purpose, entanglement and advancement of religion in evaluating whether a state action violates the Establishment clause of the First Amendment.

In a separate action today, the Court declined to review a case involving a Louisiana school district's creationism policy. The same three justices who dissented in the Texas prayer case wrote that they would have heard the creationism case, Tangipahoa Parish Board of Education v. Freiler. Scalia, noting that a majority of the Court had expressed doubts about Lemon, said he would have taken up the case "to inter the Lemon test once and for all."

The Santa Fe decision also closes off one of the most promising routes pursued by advocates of school prayer: framing their fight in terms of student free speech, rather than officially sanctioned prayer.

"The court has drawn the line," said Jay Sekulow, chief counsel of the American Center for Law and Justice, and chief architect of the strategy. "I'm disappointed at the hostility the court showed toward student speech."

Sekulow said it is possible that if a school were to adopt a "totally neutral" method of selecting a student speaker — such as selecting the student with the highest grade-point average — instead of a majoritarian election, the prayer that the speaker chose to give might have a better chance of passing constitutional muster.

Language in the majority opinion written by Justice Stevens will probably bolster church-state separationists in a broad range of disputes. Cases involving prayer at graduations in Alabama and Florida are pending before the high court and could be sent back to the U.S. Court of Appeals for the 11th Circuit as soon as next week in light of the Santa Fe decision. Other disputes over state "moment-of-silence" statutes could also be affected by Monday's ruling.

"This effectively puts an end to student votes on prayer," said Steve Shapiro, legal director of the American Civil Liberties Union. "The same logic applies to graduation prayer."

Said Barry Lynn, executive director of Americans United for Separation of Church and State, said, "The court has reaffirmed the principle that prayer cannot be imposed on young people against their will. Mob rule on religion has no place in our public schools."

Philip Baum of the American Jewish Congress said he hoped the decision would bring to an end the "massive resistance," especially in the south, to the constitutional demand for religious neutrality.

First Amendment Ombudsman Paul McMasters said the decision was a good one, but noted "two unfortunate aspects: It doesn't clear up the legal muddle over prayer at graduation ceremonies, and it probably will add fuel to efforts to get the school prayer amendment off the back burner in Congress."

The Texas district's policy was challenged by two families — one Mormon and one Catholic — whose real names were not used in the litigation because they feared reprisal. The U.S. Court of Appeals for the 5th Circuit sided with the families and struck the policy down.

Fundamental to the Supreme Court's ruling in the case was Stevens' assertion that by devising a policy to allow pregame prayer, the Texas school district had not created a public forum in which the student's speech freedoms would be given greater protection.

Instead, the school policy allowed only for "appropriate" messages and imposed other guidelines that give the student's message "the imprint of the state."

Jan LaRue of the conservative Family Research Council was critical of this aspect of the decision. "The court has made a high school student an agent of the state and then censored her prayer."

The prayer takes place on school property and is broadcast over the school's public address system, Stevens noted. And even though attendance at football games is not required, Stevens said, students feel "immense social pressure" to be present.

"Even if we regard every high school student's decision to attend a home football game as purely voluntary," Stevens said, "we are nonetheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship."

Stevens' only concession to student religious practices came late in his opinion: "Nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday. But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer."

Rehnquist expressed concern that the majority's logic could be used against a school that sponsors the singing of the national anthem at a football game, because the anthem's concluding verse is "And this be our motto: 'In God is our trust.'"

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

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