Mr. Lanting, a member of Cornerstone Protestant Reformed Church of Dyer, Indiana, is a practicing attorney.

In light of the school’s history of regular delivery of student-led prayers at athletic events, it is reasonable to infer that the specific purpose of the policy was to preserve a popular state-sponsored religious practice. The delivery of such a message—over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages prayer—is not properly characterized as “private speech.”

The common purpose of the Religion Clauses of the First Amendment is to “secure religious liberty.” Thus, nothing in the Constitution prohibits any public school student from voluntarily praying at any time before, during, or after the school day. But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.

Majority Opinion, Santa Fe Independent School District v. Doe

(U.S. Supreme Court, June 19, 2000)

The Court [majority opinion] distorts existing precedent to conclude that the school district’s student message program is [unconstitutional]. But even more disturbing than its holding is the tone of the Court’s opinion: it bristles with hostility to all things religious in public life. It is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.”

Minority Dissenting Opinion, Sante Fe Independent School District v. Doe

(U.S. Supreme Court, June 19, 2000)

Public School Prayer

Early this summer the U.S. Supreme Court revisited the politically divisive controversy over prayers in public schools, an enduring religious freedom issue that has plagued the Court for the last forty years. In its most definitive ruling on public school prayer in the last decade, a bitterly divided court (6-3) refused to approve a carefully crafted Texas high school “prayer policy” that permitted the student body to elect a student to “deliver a brief invocation and/or message” during pre-game ceremonies for varsity football games. In a previous ruling, the Supreme Court in 1992 had held that a prayer delivered by a rabbi at a middle school graduation ceremony also violated the Establishment Clause of the First Amendment.

This recent ruling outlawing student-led prayers at football games was, of course, not well received in Texas, where in the Republican primary last March, 94% of voters approved a non-binding resolution backing student-initiated prayer at school sporting events. Texas Governor and presidential candidate George W. Bush had filed a brief in this case urging the Supreme Court to approve the controversial student prayer policy. An ABC news poll in March of this year said two-thirds of Americans thought students should be allowed to lead voluntary prayers at such events.

The Prayer Policy at Issue

Four students and their parents represented by the ACLU sued the Santa Fe Independent School District, alleging that the District had engaged in several proselytizing practices, such as promoting attendance at Baptist revival meetings, encouraging membership in religious clubs, and distributing Gideon Bibles on school premises. They also alleged the District allowed students to read Christian invocations and benedictions at graduation ceremonies, and to deliver overtly Christian prayers over the public address system at home football games.

In 1995 the District adopted, after several revisions, a “prayer policy” that allowed the high school students to elect a student volunteer who “may decide what message and/or invocation to deliver at pre-game ceremonies at varsity football games.” The stated purpose for such a “message and/or invocation” at football games was “to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for competition.” The Supreme Court, upholding the federal appellate court, ruled that such student-led “messages and/or invocations” violated the Constitution, which prohibits government from activities resulting in an establishment of religion.

A lower federal appellate court had ruled last year that school officials must instruct students to keep their graduation ceremony prayers “nonsectarian and non-proselytizing,” but also held that student-led prayers at school sporting events are always unconstitutional. The District appealed both issues, but the U.S. Supreme Court chose to address only the student-led prayers at football games, ignoring the graduation ceremony invocations also challenged by the plaintiffs.

Government Speech or Private Speech?

In reviewing the District’s policy permitting student-led “messages” or “invocations” at sports events, the Supreme Court noted that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” The Court found that the pre-game prayers were not private speech deserving protection. Rather, “these invocations are authorized by a government policy and take place on government property at government-sponsored school-related events.” Moreover, the Court argued that the majoritarian election of one student to deliver such prayers only assured that “minority candidates will never prevail and that their views will be effectively silenced.”

In addition, the Court held that the District had failed to “disentangle itself from the religious messages” merely by adopting the student election process. The Court also held that the written policy itself impermissibly “invites and encourages a religious message” and an “appeal for divine assistance.”

The Court was not impressed by the District’s argument that the pre-game prayers had a secular purpose because they were necessary to “solemnize sporting events.” The Court, in an obviously cynical tone, held:

The District asks us to pretend that we do not recognize what every Santa Fe student understands clearly — that this policy is about prayer. The District further asks us to accept what is obviously untrue: that these messages are necessary to “solemnize” a football game and that this single-student year-long position [of student chaplain] is essential to the protection of student speech. We refuse to turn a blind eye to the context in which this policy arises….

Dissent

Chief Justice Rehnquist (joined by Justice Scalia and Justice Thomas) dissented, arguing that the District’s policy did have a “secular purpose” of solemnizing the football games. Rehnquist argued that “it is easy to think of solemn messages that are not religious in nature, for example, urging that a game be fought fairly.” In the dissents’ view, such a “message and/or prayer” policy by a public high school “that tolerates religion does not mean it improperly endorses it.” Finally, in the dissents’ view, the contemplated “message” or “invocation” selected and delivered by a single elected student would not be government speech, but private speech entitled to constitutional protection.

Comment

Because the Court’s majority opinion refused to address the collateral issue of the District’s written policy on graduation prayers, constitutional scholars are now unsure of the Court’s posture regarding student-led prayers in settings other than pre-game ceremonies at public school sporting events.

The majority’s opinion is, however, distressing to the extent that it seems to hold that any governmental policy that only accommodates religious speech is necessarily an unconstitutional endorsement of religion. As the dissent convincingly argued, our Constitution does not “require complete separation of church and state: it affirmatively mandates accommodation, not merely tolerance, of all religions and forbids hostility toward any.”

But perhaps more troubling than the Court’s arguable hostility toward accommodation of public prayers is the District’s corresponding trivialization of prayer. The District was represented by the American Center for Law and Justice, an evangelical organization devoted to protecting religious freedoms. In its zeal to prevail in this case, the Center (and its attorney Jay Sekulow) made several ingenuous and perhaps indefensible arguments.

First, the District urged the Court to approve prayers at public school football games because such prayers would arguably serve secular purposes: to “solemnize” the game; to promote “good sportsmanship”; and to “establish the appropriate environment for competition.” Public prayers are necessary to “solemnize” a high school football game? This is a ludicrous notion, which only demeans and trivializes authentic Christian prayers. This specious suggestion that public prayers at high school sporting events have a secular purpose was rejected vehemently by the Court, and perhaps accounted for some of its cynicism and hostility toward the District’s contrived position.

Secondly, the District and its attorney Jay Sekulow vainly attempted to assure the Court that these suggested student-led prayers would be “nonsectarian and non-proselytizing.” This is code for saying that these challenged prayers would presumably not refer to Jesus Christ or even the Christian faith, but would be a generic and vague invocation inoffensive to a Jew, Muslim, or Buddhist. But Mr. Sekulow and the Center for Law and Justice should know better; such a concession is perhaps inexcusable. An amorphous invocation to some cosmic deity may pass constitutional muster and be inoffensive to a Jew, but would nonetheless be blasphemous to the Christian triune God who requires His children to pray only in Jesus’ name. The Supreme Court Justices are no fools, and they were not amused by the suggestion that the Southern Baptists in control of the Santa Fe public school district would offer “nonsectarian and non-proselytizing” prayers (an oxymoron?).

Finally, one is tempted to remind the Santa Fe Christians who insist on sending their children to public schools that they are inexcusably ignoring the more fundamental issue at stake, and it is not solemn, generic invocations at Texas football games. These Christian parents ought to expend their time and energy, not on litigating the constitutionality of pre-game ceremonies at football games, but rather on establishing their own parental, Christian schools where prayers before class, chapels, and student activities would be legal, appropriate, and biblical. They seemingly refuse to understand that the state government has no right, duty, or obligation to educate their children. Compared to this great mandate for Christian parents to educate their own children, invocations at football games are inconsequential and perhaps meaningless concerns. Although the constitutional protection of religious speech in the public arena is of paramount importance for evangelical Christians, given the facts of this case, one wonders why the Center for Law & Justice pursued this case to the highest court in our land. There is an old constitutional lawyers’ adage that “bad facts make bad law,” and the Santa Fe football prayer case is a disappointing example.