Pigskin Piety V. The Constitution

Will The Supreme Court Rule Texas Football Prayer Out of Bounds?

There are two cherished traditions in the state of Texas: religion and football. But four years ago, the line between the two Texas institutions became a little too blurred.

At Santa Fe High School in the fall of 1995, hundreds of students and sports fans from the Santa Fe community attended a high school football game. But before the ball was kicked off, school officials turned over the microphone to a student to recite a prayer over the stadium's public address system. Two students in this audience, one Catholic and the other Mormon, recognized that it was not their prayer being read and thought that perhaps something was amiss.

The same year, the school district issued its first written policy on football devotions. It provided for a brief prayer to be delivered by a student elected by the school's student population. According to the policy, the invocation was to be "delivered during the pre-game ceremonies of home varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition." Further, the prayer was to "non-sectarian" and "non- proselytizing."

Parents of the two children troubled by the football game prayer, with assistance from the Texas affiliate of the American Civil Liberties Union, tried to negotiate with the Santa Fe school district, asking school officials to alter the policy. When those attempts failed, the parents filed suit in federal court.

Little did they know at the time, but those two students touched off a historic legal battle, and in the process, set the stage for one of the most important religion-in-school cases in recent memory. As the Dallas Morning News noted, the town of Santa Fe, with a population of about 10,000, has become "ground zero in the protracted national war over prayer in the public schools."

The most significant bomb in this "war" was dropped Nov. 15, when the U.S. Supreme Court announced that it will hear Santa Fe Independent School District v. Doe. A decision is expected by June or July.

The Santa Fe controversy will be the most significant case concerning religion in public schools since the Supreme Court decided Lee v. Weisman, a 1992 case in which the justices ruled that public schools may not sponsor clergy-led invocations at graduation ceremonies.

The question at hand is simply whether school authorities may permit a student to broadcast a prayer before a football game. However, this matter raises a new wrinkle not yet considered by the Supreme Court. For decades, the court has agreed that schools must remain neutral toward religion. Stu­dents who wish to pray may do so, but the school can't get involved. In this case, the school district insists that it is students who are praying voluntarily, so it would be unconstitutional to prohibit them from doing so. Meanwhile, parents of the children of minority faiths note that it is a public school event, and it is school officials who are turning over the school's public address system for prayers to be broadcast to everyone present.

It is the state's involvement that re­mains legally contentious for those who support church-state separation.

"Students should not be pressured to pray, whether it's at football games, in the classroom, or anywhere else," said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State. "Since the Supreme Court's ruling on school prayer in 1962, opponents of church-state separation have made every effort to circumvent the law, and one approach is for school officials to have students do what the school cannot and call it 'student-initiated prayer.' But courts have uniformly rejected such schemes. Hopefully, the Supreme Court will do the same in this case."

While football prayer is the main issue in this case, Anthony Griffin, the attorney for the families, told Church & State that a defeat at the Supreme Court could very easily open the door to a variety of negative consequences.

"If the Supreme Court disagrees and rules against us, I believe we have prayer in school again," Griffin said. "7:30 every morning, over the loudspeaker, we're right back where we were years ago. Schools could label the first 15 minutes of homeroom an 'extra curricular' period and start every day with prayer. I think the case is that serious. I really do."

The church-state problems at Santa Fe High have been numerous, and go well beyond just prayer at football games.

Richard Ownby, superintendent of the school district, admitted to the Dallas Morning News that in recent years there have been multiple incidents breaking with constitutionally mandated neutrality. Students have complained about occasions where fourth graders were not permitted to go to lunch until they joined in prayer, teachers have encouraged their students to attend revival meetings and representatives of the Gideons have been given permission to distribute Bibles at the schoolhouse door.

The most outrageous example was cited in the Santa Fe v. Doe case. A Mormon student, one of the two responsible for the football prayer lawsuit, was attending her seventh grade Texas History class in 1993, and was invited to a Baptist religious meeting by her teacher, David Wilson. The student asked if non-Baptists were welcome to attend. When Wilson discovered the student was Mormon, he expanded on the "non-Christian, cult-like nature of Mormonism."

Though Wilson was later forced to apologize to the student and the class for his behavior, it highlights a tension throughout the community between those who want to keep the school neutral on religious matters and those who believe the school can and should promote evangelical Christianity.

A majority of the community appears to prefer the latter.

Santa Fe is a small town about a half-hour from Galveston in southeast Texas. Residents are 90 percent white and most are Baptist. Unfortunately, the controversy over football invocations is not Santa Fe's first brush with intolerance, as the community's record has been scarred for many years.

According to a report in the Houston Press, a Santa Fe resident hosted a Ku Klux Klan rally on his property in 1981 after local fisherman confronted Viet­namese immigrant shrimpers in Gal­ves­ton. Later that year, the KKK returned for a cross burning in Santa Fe. The Klan even built a paramilitary training camp in the area, though courts later closed it down.

In such an environment, few people have the courage to speak up.

Margaret Snively is a Catholic parent in Santa Fe and one of only a few parents to publicly criticize the school district on its religious policies. She told the Houston Press that religion should be taught at home and that public schools have no business meddling.

"My children say the Hail Mary," Snively said. "If you tell a class to sing before lunch, and it has Jesus and amen in it, well, it sounds like a prayer."

Jennifer Mason is another individual who has taken a stand.

In 1993, she turned down a Bible from a Gideon distributing the book at Santa Fe High. Despite being a Baptist, Mason was confronted by several students who asked whether she was a "devil worshiper."

"If the school got everything they wanted, we all know what religion Santa Fe High would be," Mason told the Houston Press. "Baptist. They basically want a private religious school that has public funding."

In light of the school's record on religious matters, Griffin successfully argued that the dissenting families should be able to file the suit anonymously in the Santa Fe case, due to the sensitive nature of the controversy.

"It's a small community and the parents wanted their kids to continue to go to school without having to worry about them being harassed or shunned," Grif­fin told Church & State. "They wanted to remain anonymous, and I think their concerns were justified."

In fact, there was a concerted effort by the school to find out which students were complaining about the prayers.

"On one occasion, the school passed around a petition to the students and asked those who were in favor of prayer to sign," Griffin explained. "Another time, they passed a petition around to see who was opposed to the lawsuit. Naturally, anyone who didn't sign was viewed as the enemy. We had to go to court to get them to stop circulating the petitions, because obviously this was less than subtle intimidation."

Earlier this year, a decision from a federal appellate court on the football prayer issue only exacerbated the divisive nature of the controversy. On Feb. 26, the 5th Circuit Court of Appeals ruled 2-1 that invocations before football games are impermissible and the school district's policy is unconstitutional. The ruling, however, was not a complete victory for either side. The court ruled that public school students may legally choose to "solemnize" graduation ceremonies with prayer because such a ceremony is "a significant, once-in-a-lifetime event," but the same could not be said for football games.

Judge Jacques Wiener wrote that football games are different because they are "hardly the sober type of annual event that can be appropriately solemnized with prayer."

Proponents of school-sanctioned worship immediately started "spinning" the decision, suggesting the court was restricting the right of students to pray. Some students were so angered by the decision that they went to great lengths to circumvent it. And while they lacked a clear understanding of constitutional law, they more than made up for it with their creativity.

For example, one 17-year-old girl stormed the press box in Justin, Texas, to grab the microphone to broadcast a prayer she wanted to share with the crowd in attendance to watch her high school's football game. Tiffany Brid­well, 14, recorded an invocation for a country music radio station in her area to be broadcast before kickoff at Andrews High School. In Stephenville, Texas, some clever students were told they couldn't pray over the school's loudspeaker, so they smuggled a portable public address system into the school's football stadium.

But Marian Ward's disagreement with the 5th Circuit's ruling had a far larger impact than the others.

Ward, daughter of a Santa Fe minister, was chosen as a "student chaplain" by her classmates, and asked to deliver a prayer before a football game earlier this year.

"That's the only right way to begin anything," Ward told the Dallas Morning News. "You start your day with prayer."

However, the 5th Circuit's ruling appeared to strictly prohibit the prayer Ward wanted to have broadcast to the football game's crowd. To avoid punishment for violating the ruling, Ward's family filed a separate lawsuit, arguing that her free-speech rights were being violated.

On Sept. 3, U.S. District Judge Sim Lake agreed and issued a temporary 10-day restraining order forbidding school officials from punishing any student for leading prayers over the school's public address system at games. Lake ruled that the school would be favoring "atheism over any religious faith" if it restricted devotions before games. Ward subsequently delivered her prayer, and ended her comments with "In Jesus' name I pray. Amen."

For Anthony Griffin, the attorney representing the families in Santa Fe v. Doe, not only are the football prayers unconstitutional, but even the process of electing a student to give the prayers is problematic.

"It's a tyranny of the majority," Griffin told Church & State. "If our constitutional rights were based on some democratic vote, we'd all be in trouble. Religious beliefs are not always popular or shared by the majority. Tyranny is about the majority imposing its will on the minority, but that's not how constitutional principles are supposed to work, and that's what this case is about."

The controversy took on national notoriety in Octo­ber, when several members of the Texas delegation to the U.S. House of Rep­re­sen­tatives intro­duced a nonbinding resolution urging the Supreme Court to allow school-sanctioned worship at high school football games.

Led by Reps. Henry Bonilla (R-Tex­as) and Charles Stenholm (D-Texas), 30 lawmakers cosponsored H.Con.Res. 199, a resolution that said "prayers and invocations at public school sporting events contribute to the moral foundation of our nation."

At a Capitol Hill news conference Oct. 19, Bonilla said the 5th Circuit's decision "banned" Texas high school students from praying.

"If we can start each day in Congress with a prayer, why can't the students in our schools do the same before their football games?" Bonilla asked. "This ban sets a dangerous precedent. It is wrong for our courts to dictate when and where we can pray."

Bonilla's House colleagues agreed. On Nov. 2, the House approved the resolution by a voice vote.

Of course, members of Congress aren't the only ones looking to capitalize on this case.

Religious Right strategists see the conflict as an opportunity to get a foot in the door on the issue of religion in public schools. After repeated failed attempts to get around Supreme Court rulings on school neutrality on religious matters, many Religious Right leaders feel that "student-initiated prayer" is the answer they've been looking for.

To help ensure the success of this plan, Pat Robertson's legal arm, the American Center for Law and Justice, will be representing the school board. In November, the Santa Fe School Board voted to name the ACLJ and its chief counsel, Jay Sekulow, as "counsel of record" in the case at the Supreme Court, and Sekulow will be responsible for oral arguments before the justices.

"This is a critical free speech case involving the First Amendment free speech rights of students on campus," Sekulow said.

Politicizing the matter even further, the Santa Fe controversy has also become an opportunity for politicians to take public positions in favor of religion. Texas Gov. George W. Bush (R) filed a brief with the justices in support of the school district and applauded the Supreme Court's decision to hear the case.

A spokeswoman for Bush told the Houston Chronicle that the governor hopes the 5th Circuit decision is overturned. "[Bush] believes in a First Amend­ment right for students to participate in the free exercise of religion, and he believes government should not dictate or censor the content of voluntary student-led prayer," said spokeswoman Linda Edwards.

Rhetoric like that frustrates AU's Lynn.

"If students want to pray before a football game, that's their right and no one is trying to take that right away," Lynn said. "But when public school officials turn over the school's microphone to broadcast a prayer at a school event, that's something else entirely."

Griffin agrees.

"The other side has done a wonderful job of perverting this issue," Griffin said. "They've convinced a lot of people that this is about students being able to pray. The right of students to pray is not being compromised. Rather, some students are effectively seeking to extend state sponsorship to their religious beliefs.

"This is not a free speech issue," Griffin added. "The high school has never been an open forum. The whole notion that students can say everything and anything, whenever they want, is just not true. Free speech doesn't work that way."

When asked about his predictions on how the Supreme Court may rule, Griffin seems confident.

"The Supreme Court, whether led by liberals or conservatives, has been fairly consistent in protecting the First Amendment," Griffin said. "I believe they will do so again. My expectations are that the justices will see the subterfuge and not allow the state-sponsored prayers to continue. My expectations are that we will prevail."