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Published in Print: April 5, 2000, as Court Hears Arguments In Prayer Case

Court Hears Arguments In Prayer Case

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Student-led prayers at high school football games received a generally skeptical reception at the U.S. Supreme Court last week, as the justices took up one of the nation's most divisive debates involving religion and public education.

At issue is the Santa Fe, Texas, school district's 1995 policy authorizing students to elect one of their classmates to deliver a "brief invocation and/or message" to "solemnize" and "promote good sportsmanship and student safety" at its home football games. In practice, district students have generally used such occasions to lead Christian prayers.

Lawyer Anthony P. Griffin speaks to reporters after urging the U.S. Supreme Court to oppose a policy allowing student-led prayers at football games.
—Benjamin Tice Smith

The district argues that its policy does not advance religion but creates a neutral forum for private student speech before football games.

"The Santa Fe policy creates a venue for student expression," Jay A. Sekulow, the district's lawyer, told the justices during the March 29 oral arguments in Santa Fe Independent School District v. Doe (Case No. 99-62).

But the lawyer for two families that sued the district in 1995 over a variety of religious practices responded that the district's mechanism for authorizing student messages is a sham that promotes the delivery of prayers.

"This court has said we should not subject First Amendment rights to popular vote," said Anthony P. Griffin, representing families identified in court papers as Doe I and Doe II. The student messages at Santa Fe High School are "a majoritarian prayer," the lawyer said.

Several justices expressed concerns about the district's policy.

Justice David H. Souter said that even though students' attendance at the football games is arguably voluntary, "the school district is forcing schoolchildren to sit there and participate in this prayer."

"This is not a neutral speech policy," he added. "It is religious worship."

Justice Anthony M. Kennedy, who along with Justice Sandra Day O'Connor is viewed by many legal experts as a critical swing vote on issues involving religion in public schools, several times expressed deep reservations about the district's policy.

"To have a school election on whether to have prayer is something our establishment clause wants to keep out," he said, in reference to the First Amendment's language barring any government establishment of religion.

Justice Kennedy was the author of the majority opinion in Lee v. Weisman, the court's 1992 ruling striking down clergy-led prayers at public school graduation ceremonies.

Two Families

The current case involves the 4,400-student Santa Fe district near Galveston, which before 1995 allowed the student council chaplain to deliver prayers at football games at Santa Fe High, the district's only high school.

Those prayers, as well as prayers at graduation and other alleged religious incidents and practices, were challenged in federal court five years ago by two families, one Roman Catholic and one Mormon. In one such incident, a Mormon student was told by his 7th grade teacher, a Baptist, that Mormonism was "evil" and cultlike.

A federal judge allowed the families to press their lawsuit under pseudonyms because of their fears about reprisals in the small community.

In response to the suit, the school wrestled with drafting new policies for graduation and football-game prayers. Officials had to take into account not only the Lee decision, but a subsequent 1992 ruling by the U.S. Court of Appeals for the 5th Circuit that student-initiated, student-led prayers at graduation ceremonies were constitutional as long as they were "nonsectarian and nonproselytizing."

The New Orleans-based appeals court did not address football-game prayers with that ruling, known as Jones v. Clear Creek Independent School District.

Ultimately, the Santa Fe district adopted policies that called for students to vote on whether to have student-delivered messages at both graduation ceremonies and football games. Students chosen to deliver such messages would be allowed to determine the content of the remarks themselves. The football-game policy made no mention of other sports.

The district's policies varied from the Clear Creek language in that the student messages or prayers were not required to be "nonsectarian and nonproselytizing."

However, in reviewing the Santa Fe district's case last year, a panel of the 5th Circuit court ruled 2-1 that the Clear Creek language was a necessary element for district policies permitting student-led prayers at graduation.

As for football games, the appeals court majority said student-led prayers were not permissible at all under the First Amendment.

The court said a key element of its Clear Creek ruling was that a high school graduation was a once-in-a-lifetime event deserving of being solemnized with prayer. But football games, the 5th Circuit panel said, are "hardly the sober type of annual event that can be appropriately solemnized with prayer."

The district appealed to the Supreme Court, seeking review of the issue of prayer at both graduation and football games. But the justices, without explanation, granted review only of the district's football-prayer policy.

The Santa Fe district was joined in its appeal by the state of Texas and Gov. George W. Bush, the presumptive Republican presidential nominee, who argued in a brief that "allowing students to have a message or invocation prior to high school football games ... promotes good sportsmanship and honest and fair play in an otherwise rough and dangerous sport."

'Solemnizing' Football

In a rare action, the high court allowed Texas Attorney General John Cornyn to participate in last week's oral arguments on behalf of the school district.

"This is not the government speaking, this is a private individual speaking" during the football-game invocation, Mr. Cornyn told the justices.

Justice Breyer suggested to Mr. Cornyn that the district's election mechanism "seems to leave minority religions out more. Wouldn't the minority person be more than left out?"

Mr. Cornyn replied, "We are all inundated with messages that we disagree with."

Justice Souter questioned Mr. Sekulow, the lawyer for the school district, about the point of the pregame message.

"I'm not sure what solemnizing a football game is," he said.

"Solemnization is bringing about respect, honor, and dignity," replied Mr. Sekulow, who is also the chief counsel of the American Center for Law and Justice, a legal organization founded by the religious broadcaster Pat Robertson.

Mr. Griffin, the lawyer for the families challenging the prayers, did not have an easy time with the court's more conservative justices.

"It may well be the rigid rule we adopted in Lee v. Weisman may not apply to football games," said Justice Antonin Scalia, who wrote the dissent in the 1992 case.

Under the district's policy, he added, "the majority can elect someone who doesn't want to give a prayer."

Since the court's 5-4 ruling in Lee, one member each from the majority and minority has left the court. Justice Byron R. White, who was in the minority, was replaced in 1993 by Justice Ruth Bader Ginsburg. Justice Harry A. Blackmun, who was in the majority, was replaced in 1994 by Justice Stephen G. Breyer. Both of the newest justices have voted to maintain a high wall of separation between church and state.

Besides Justices Scalia and White, the others in the minority on graduation prayer were Chief Justice William H. Rehnquist and Justice Clarence Thomas. Justice Thomas didn't speak during the oral arguments last week, but the chief justice appeared sympathetic to the school district.

"Am I right in saying no one is required to be at the football game?" he asked Mr. Griffin.

Some students are required to attend, Mr. Griffin responded, such as members of the marching band.

Justice Scalia shot back, "Is anyone forced to be a cheerleader, or band member, or football team member?"

"When you're a teenager, yes," said Mr. Griffin, to laughs in the courtroom.

The families' chief argument is that the district sponsors and controls the program allowing student messages at the football games.

"If a student vote could privatize prayer, students could vote for prayer in the classroom, and public schools could evade every one of this court's school prayer cases," Mr. Griffin argues in court papers.

'State Religion'?

As a backdrop to the case, both sides and several of the justices acknowledged the social importance of high school football in Texas.

The association quoted a magazine article that called high school football in Texas "the state religion."

The events of Santa Fe High School's 1999 football season were discussed briefly during the oral arguments, even though that period is not part of the factual record of the case.

Last fall, faced with the 5th Circuit's ruling against prayer at the games, district officials suggested that a student speaker who offered a prayer over the public-address system would be punished as if she had cursed.

Marian Ward, who became the designated football-game speaker after the resignation of another student, sued the district in federal court, arguing that she had a First Amendment right to offer a prayer as her message. She won a temporary restraining order preventing the district from censoring her message.

Ms. Ward, a senior at Santa Fe High whose father is a Baptist minister, attended the oral arguments last week.

"Religious speech shouldn't have to take second place to secular speech," she said afterward. "God calls for public acknowledgment."

The court should issue its ruling in the case by early summer.

Vol. 19, Issue 30, Pages 1,27

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