c. 2000 Religion News Service

WASHINGTON _ A Texas school district policy permitting a student to lead a prayer before football games was declared unconstitutional by the U.S. Supreme Court Monday (June 19).

“The policy is invalid on its face because it … unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events,” the court ruled in a 6-3 decision.

The case involved a policy of the Santa Fe Independent School District of Galveston County, Texas, which was invalidated by the Fifth District Court of Appeals. Two families, one Mormon and another Catholic, sued the district, arguing the policy violated the First Amendment’s Establishment Clause prohibiting governmental establishment of religion.

The policy called for high school students to vote on whether a student would deliver a “message” or “invocation” at varsity football games “to solemnize the event.” If the students voted for such a start to the games, the policy called for them to choose in a separate election which student would deliver the invocation or message.

The high court, guided by the principles of its 1992 decision prohibiting school-invited clergy from leading prayers at graduations, determined the football-game invocations should not be considered “private speech.”

“These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events,” the court majority said in an opinion written by Justice John Paul Stevens.

In addition, the court said, the policy of permitting just one student to give the invocation for the entire season prevents the pre-game ceremony from including different messages.

“The majoritarian process implemented by the district guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced,” it said.

The court was not swayed by the district’s argument that attendance at football games “differs dramatically” from attendance at a commencement.

“Undoubtedly, the games are not important to some students, and they voluntarily choose not to attend,” the opinion said. “For many others, however, the choice between whether to attend these games or to risk facing a personally offensive religious ritual is in no practical sense an easy one.”

The court also said the Establishment Clause, which affirms religious liberty, does not prohibit all religious activity within public schools.

“Thus, 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 school day,” the ruling said. “But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.”

In his dissent, Chief Justice William H. Rehnquist argued the student, not the government-controlled school, would determine the speech permitted by the policy.

“The Court distorts existing precedent to conclude that the school district’s student-message program is invalid on its face under the Establishment Clause,” wrote Rehnquist. He said the tone of the opinion “bristles with hostility to all things religious in public life.”

The American Civil Liberties Union, which argued the case on behalf of the Catholic and Mormon families, called it a victory for religious freedom.

“The court’s decision today on stadium prayer rests on the principle that the Constitution does not allow school officials to hold elections to decide whether and when students should pray,” said Steven R. Shapiro, the ACLU’s legal director.

Jay Sekulow, a lawyer who represented the school district, said the ruling allows “private school expression” to be censored.

“Obviously we’re disappointed,” said Sekulow, chief counsel for the American Center for Law and Justice, in an interview. “They converted a private student speaker into a government actor.”

Jan LaRue, senior director of legal studies for the Family Research Council, agreed.

“Allowing students to speak about their faith in public in their own words does not create a government endorsement of religion,” she said in a statement.

Longtime proponents of church-state separation hailed the ruling.

“Religious Right groups that complain that the court has censored prayer are dead wrong,” said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. “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.”

Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, welcomed the decision and noted that private prayer during a game, at lunchtime and before class remains legal.

“The Supreme Court wisely has maintained that this type of prayer is not the same as officially supported and conducted prayers read over a loudspeaker on behalf of all those present,” he said.

In a separate but related matter, the high court also decided Monday to refuse review of a lower court ruling that declared unconstitutional a Louisiana school board policy mandating that the teaching of evolution should be accompanied by a disclaimer citing “the biblical version of creation.”

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