Supreme Court justices grappled Wednesday with the contentious issue of religion in schools, with several suggesting that a Texas school district violated the Constitution when it allowed student-led invocations before football games.
In taking up the issue, the court entered a heated debate that has pitted parents against parents, and split Congress and numerous state legislatures. After a testy, hourlong argument, it was evident that the justices, too, are divided on when the 1st Amendment prohibits religious messages at school functions.
Observers hope the case will provide school officials with needed guidance on when prayers or invocations are allowed. But Wednesday’s arguments gave little indication that the justices are ready to issue clear rules in the area.
Justice David Souter appeared most hostile to the school district’s policy of allowing student-led invocations, suggesting that such messages amount to “religious worship, an act of religious practice” and that they couldn’t be “inflicted” on students who don’t want to hear them.
But Justice Antonin Scalia suggested the school district did nothing wrong when it allowed students to give brief invocations before games. After all, he said, the school didn’t force objecting students to attend.
Other justices fell in between, with the two who often are considered swing votes, Justices Anthony Kennedy and Sandra Day O’Connor, clearly troubled by certain aspects of the school’s policy, though unwilling to declare all prayer in schools unconstitutional.
Kennedy said he was “looking for some mechanism” that would accommodate some religious expression but keep divisive religious debate out of schools. “And I haven’t seen it yet,” he said.
The case concerns a policy adopted by the Santa Fe Independent School District, near Galveston, which allows a student-selected, student-given “brief invocation and/or message” to be delivered during the pre-game ceremonies of home high school varsity football games. The district said the message is designed to “solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.”
A group of Mormon and Roman Catholic parents sued, but a U.S. District Court upheld the policy, so long as the prayers were “non-sectarian and non-proselytizing.” A federal appeals court in New Orleans reversed the district court, holding that any policy that allows invocations and “messages” before high school football games is unconstitutional.
The appeals court said such policies violate the 1st Amendment, which requires that church and state be kept separate. It referred to Supreme Court decisions that say official school prayer illegally promotes religion.
The court last considered school prayer in 1992, when it said clergy-led prayer at public-school graduation ceremonies violates the 1st Amendment’s establishment clause, which prohibits government from establishing religion. In that case, the court emphasized the coercive nature of the government-directed prayer and said objecting students were obliged to participate.
That ruling was largely consistent with earlier court decisions, which have emphasized that school-sponsored prayer illegally establishes a religion. In 1980, the court prohibited Kentucky from posting the Ten Commandments in every classroom. In 1985, it invalidated Alabama’s moment of silence for meditation and voluntary prayer.
But the court also has signaled it would tolerate speech that was neutral and did not amount to government endorsing or advancing religion. To that end, school districts have turned to student-led prayer in hopes of avoiding a constitutional issue.
That was the approach Jay Sekulow, a lawyer for the school district, took Wednesday. He said the policy was constitutional because it is neutral and allows individual students to choose the content of the message. He emphasized that it serves legitimate goals of solemnizing the event and promoting sportsmanship and noted that the message didn’t have to be religious.
Striking down the policy would require the school district “to censor only religious messages,” Sekulow said. Under that rationale, students in a talent show could be allowed to sing John Lennon’s “Imagine,” while being prohibited from singing “Amazing Grace.”
John Cornyn, the Texas attorney general, also defended the policy, saying students should be able to give whatever message they want, as long as they stayed “on topic” and furthered the school’s purpose of promoting sportsmanship and solemnizing the event.
Anthony Griffin, a lawyer for a group of parents challenging the policy, said the district was establishing religion by allowing the student body to elect a student speaker to give the message.
“I don’t think you can subject it to a majority vote and then say it’s neutral,” Griffin said.
That point clearly resonated with Kennedy and O’Connor, both of whom expressed concern about students campaigning for the position. Kennedy suggested a scenario in which one student campaigned based on her ability to give inspirational prayers and another campaigned against saying a prayer at all.
“You’d have a school election on whether to have prayer,” Kennedy said. “That is the kind of thing, I think, the `establishment clause’ wants to keep out of schools.”
Scalia suggested that the football captain or a student with the highest grade point average could have the honor of delivering the message. But Griffin said that, too, would be unconstitutional, because the message was being broadcast at a school function.
Chief Justice William Rehnquist said “nobody has to go” to football games, suggesting that students could avoid messages they found objectionable.
Griffin said “football is awfully important” and that band members, players and cheerleaders were required to attend.
“They’re forced to do it?” Scalia asked.
“When you’re a teenager, yes,” Griffin said.
