First Amendment Touchdown!

Supreme Court Blows The Whistle On School-Sponsored Prayer At Football Games

School officials in Santa Fe, Texas, have never been too happy with the U.S. Su­preme Court's decisions banning official prayer and other religious activities from the classroom.

Although government-sanctioned devotions are unconstitutional, some families in the community say the school district has often sought ways around the high court's rulings--or ignored them completely. Over the years, dissenting parents in this heavily Baptist area have complained about distribution of Bibles, evangelical Christian prayers before events, teachers encouraging children to attend evangelistic revivals and members of minority religions being scorned or ridiculed.

In April of 1995, two families--one Roman Catholic and the other Mormon-- decided they had had enough of the sectarian flavor of Santa Fe's public schools. They filed suit in federal court and won a ruling striking down a variety of the practices.

Five years ago, few would have guessed that the court battle in this small southeast Texas community near Houston would take on national implications. But that's exactly what happened June 19 when the U.S. Supreme Court ruled on the case, striking down school-sponsored prayers before football games.

Thanks to various legal twists and turns, by the time the case reached the high court it dealt with just one issue: the legality of allegedly "student-led" prayers, recited over a loudspeaker, before football games. In declaring the practice unconstitutional, the Supreme Court reaffirmed the school prayer rulings of the early 1960s and handed a stinging rebuff to the Religious Right.

Defenders of separation of church and state say that the high court's 6-3 decision in Santa Fe Independent School District v. Doe should slam the door on efforts to sneak coercive prayer and religious worship into public schools through the backdoor. But it could also make religion-and-schools an issue in the November elections and re-ignite the Religious Right's drive for a constitutional amendment erasing church-state separation from the First Amendment.

Writing for the majority, Justice John Paul Stevens declared that a scheme enacted by the Santa Fe school board in October 1995 to allow students to elect a classmate to deliver an invocation or other message prior to football games was constitutionally invalid.

"Such a system," insisted Stevens, "encourages divisiveness along religious lines and threatens the imposition of coercion upon those students not desiring to participate in a religious exercise."

Stevens asserted that the policy had a clear religious purpose. District officials, he noted, had tried various dodges to keep official prayer in district schools. The court majority saw the current policy as a ruse for school sponsorship of religion, noting that the "messages" given were always prayers and that the students giving them in past years were formerly called "student chaplains."

Observed Stevens, "The District, nevertheless, asks us to pretend that we do not recognize what every Santa Fe High School student understands clearly--that this policy is about prayer. We refuse to turn a blind eye to the context in which this policy arose, and that context quells any doubt that this policy was implemented with the purpose of endorsing school prayer."

The justice dismissed the claim that the invocations are student free speech, not government establishment of religion. "These invocations," he argued, "are authorized by a government policy and take place on government property at government-sponsored school-related events."

Ironically, it was the district's transparent ploy to make the prayers appear to be "student led" that finally sank the policy. At oral argument March 19, two justices who are regarded as swing voters on church-state matters--Anthony M. Kennedy and Sandra Day O'Connor--indicated clear discomfort with the idea of students voting on religion.

Stevens echoed that concern, charging that "the majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced."

Stevens also criticized the set-up for its cavalier treatment of religious minorities.

"School sponsorship of a religious message is impermissible," he observed, "because it sends the ancillary message to members of the audience who are nonadherents 'that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.'"

Joining Stevens in the opinion were Kennedy and O'Connor along with Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer.

The majority opinion drew an angry dissent from the court's anti-separationist bloc. Chief Justice William H. Rehnquist blasted the decision, insisting that it "bristles with hostility to all things religious in public life."

Rehnquist, joined by Justices An­tonin Scalia and Clarence Thomas, asserted that "Neither the holding nor the tone of the opinion is faithful to the meaning of the [First Amendment], when 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.'"

Other Rehnquist charges were equally hyperbolic. He asserted that the ruling would bar public schools from sponsoring the singing of the National Anthem, since its third verse ends with the words "In God is our trust." This overlooks the fact that the third verse of the anthem is obscure and is rarely, if ever, sung at public events. Even if it were, courts would likely view the phrase as a benign ceremonial use of religion, akin to "In God We Trust" on money. (A week after the ruling was issued, the Family Research Council announced a scheme called the "National Sing-Out for Religious Freedom," which calls for crowds to sing the third verse of the National Anthem before public school football games this fall.)

Religious Right groups reacted with fury to the decision. Jay Sekulow, chief counsel of TV preacher Pat Robertson's American Center for Law and Justice, who argued the case on behalf of the Santa Fe district before the Supreme Court, issued a statement branding the court action "censorship."

"The decision distorts the First Amendment by exhibiting hostility towards student speech," Sekulow said.

Religious Right activist and ex-presidential candidate Gary Bauer, former head of the Family Research Council, told reporters that the decision "proves that a majority of the court is at war with the religious tradition of America." Meanwhile, FRC Legal Policy Analyst Crystal Roberts said  the ruling "is blatantly hostile to religious expression in public schools."

Jim Weidmann, vice chairman of the National Day of Prayer Task Force, a group closely aligned with James C. Dobson's Focus on the Family, issued a statement asserting, "It seems that people of faith are systematically being stripped of their abilities to express their beliefs. Supporters of the freedom of expression stand for protection of the rights of a third grader to walk into his school's library and look at pornography on the Internet. Yet a student would be defying the law if he led a prayer before a sporting event? It is truly a sad commentary on how far our country has drifted from its spiritual heritage."

But for insensitivity, it was hard to top the comments by Richard Land, president of the Southern Baptist Con­vention's Ethics and Religious Liberty Commission. "I don't care if a prayer is offensive to someone," Land said. "There's no constitutional right against being offended. Nowhere does it say that you have a right not to be offended by your peers in high school."

But not all evangelicals took such a severe line. Forest Montgomery, general counsel of the National Association of Evangelicals in Washington, D.C., told Washington Post columnist E.J. Dionne that he supports the Santa Fe ruling. "Our religious freedoms should be not subordinated to majority rule," Montgomery said. "And that's exactly what you had in this Texas case."

Unfortunately, Montgomery's view was drowned out by national Religious Right leaders, who uniformly denounced the decision. Perhaps the most extreme reaction came from TV preacher Pat Robertson. Appearing on his "700 Club" program the day after the ruling, an angry Robertson blasted the high court and accused the justices of promoting "tyranny."

Robertson, noting that the high court was soon due to rule on the constitutionality of late-term abortions, added, "If they come down and say that infanticide is a constitutional right--and that's the next case coming up--then I think it's time the people think about revolt. I mean, this is utter tyranny if they put in things like this."

Continued Robertson, "If the Supreme Court loses the support of the American people, I mean loses it clearly, their legitimacy is going to be taken away from them, and the truth is, the Constitution does not give them the power they have taken to themselves. The Constitution gives the Con­gress the power if they'd just take it."

Robertson was especially angry because four of the justices who voted to invalidate the prayer policy are Republican appointees. Kennedy and O'Connor were put on the court by President Ronald Reagan. Souter was appointed by President George Bush, and Stevens, who authored the opinion, was placed on the court by President Gerald Ford in 1975. (Breyer and Ginsburg were appointed by Democrat Bill Clinton.)

Barry W. Lynn, executive director of Americans United, criticized Robertson for making reckless comments and accused the Religious Right of distorting the ruling. The decision, Lynn said, protects an individual student's right to pray but prohibits schools from imposing prayers on unwilling participants.

"The Supreme Court made the right call," Lynn said. "School-sponsored football prayer deserved to be sacked. The justices rightly said that students should never be allowed to bully classmates into religious worship they may not believe in. Allowing majorities to impose their religion on everyone else is fundamentally un-American."

Lynn noted that the Santa Fe decision specifically states that public school students still have broad rights to engage in personal devotions.

The majority opinion is quite clear on this point. Stevens wrote, "[N]othing 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. But the religious liberty protected by the Consti­tution is abridged when the State affirmatively sponsors the particular religious practice of prayer."

That language did not stop Religious Right groups from spreading misinformation and claiming that the high court had stifled student free speech. In the face of this campaign of disinformation, Americans United work­ed overtime to set the record straight. The day of the decision and for several days afterward, Lynn appeared on television and radio programs across the nation debating Sekulow, Bauer and other Religious Right leaders about the ruling. (Major appearances included CBS's "Evening News," NBC's "Nightly News," CNN's "Inside Politics," Fox News Channel's "Hot Button Issues," National Public Radio's "All Things Considered," Associated Press Radio and ABC Radio.)

Comments by Lynn and other Americans United staff members about the Santa Fe decision also appeared in the Associated Press and Reuters accounts of the decision and in major newspapers, including The Washington Post, USA Today, Boston Globe, The Philadelphia Inquirer, the Christian Science Monitor and other newspapers.

Lynn said Americans United plans to make certain the ruling is implemented in public schools across America and will work to counter any misleading propaganda about the decision sent to public schools by Religious Right legal groups.

At least one Religious Right legal group is already gearing up to launch a campaign like that. Brad Dacus, of the California-based Pacific Justice Institute, told, a conservative news service, that he will defend school districts that devise new policies to include prayers before football games.

"It is important to recognize that this is actually a fairly narrow decision," Dacus said. "It in no way forbids school districts from allowing students to sign up to convey a religious or non-religious message for the purpose of promoting goodwill at a football game or other gathering."

Attorneys at Americans United said Dacus is engaging in wishful thinking and warned school districts to reject his advice. While the organization expects some resistance to the ruling, AU attorneys say the Santa Fe decision is broadly based and will be powerful ammunition to stop coercive, school-sponsored religious worship in other parts of the country.

That's already starting to happen. One week after the decision in Santa Fe, the Supreme Court curbed official prayer in Alabama public schools. The justices ordered the 11th Circuit Court of Appeals to reconsider a ruling it issued last year approving various types of supposedly "student-initiated" religious activity in public schools.

The 11th Circuit's ruling was extremely hostile to separation of church and state and made a number of remarkable assertions, among them that the First Amendment does not require a wall of separation between church and state and that not allowing official prayer in school establishes atheism as the state religion. That ruling is now vacated. (The Chandler v. Siegelman case was brought by Americans United and the Alabama ACLU.)

Meanwhile, the political fallout of the Santa Fe decision is just beginning to be felt. The day of the ruling, Texas Gov. George W. Bush expressed disagreement with the court holding and in a statement said, "I support the constitutionally guaranteed right of all students to express their faith freely and participate in voluntary, student-led prayer."

Bush intervened in the case early on, and Texas Attorney General John Cornyn helped defend the Santa Fe district before the Supreme Court. (During the oral argument, Cornyn shared time at the podium with Robertson lawyer Sekulow.)

The issue may spill over into presidential politics. Bush's likely opponent in the race for the White House, Vice President Al Gore, supported the ruling, according to Gore spokesman Douglas Hattaway. Hattaway told the Associated Press, "He this case that the prayer was found to be government-sponsored and participation was not truly voluntary. He does support private prayer in school and at school-related events as long as participation is truly voluntary suitable within the school environment."

The issue may also reverberate in this November's congressional elections. Democrats and Republicans remain locked in a tight battle for control of the House of Representatives, and Religious Right groups like the Christian Coalition have been looking for an issue to energize their grass roots. This may be it.

The day of the decision, U.S. Rep. Ernest Istook (R-Okla.) issued a press statement blasting the court and calling separation of church and state a "misleading phrase" that "is NOT in the Constitution."

Two years ago, Istook sponsored a so-called "Religious Freedom Amendment" that would have put mandatory prayer back in public schools, as well as required Americans to pay taxes to support religion and permitted government to display sectarian symbols. Although the measure received enthusiastic backing from the Religious Right, it fell 61 votes shy of the two-thirds majority required for passage.

Referring to church-state separation, Istook said in his statement, "The American people have never accepted this distortion of the First Amendment. But the distortion has become so entrenched that a Constitutional amendment--such as the Religious Freedom Amendment I have sponsored--remains a necessity to correct this abuse. Unfortunately, we don't have the votes to win the necessary two-thirds support for such an amendment from the current Congress. I remain hopeful that this will change after this year's elections."

Halfway across the country in Santa Fe, community residents are dealing with the scope and effect of the ruling. Even as they grapple with the aftermath, another religion-and-schools controversy has rocked the community. On May 17, three teenagers at the school were arrested and charged with making terroristic threats toward Phil Nevelow, the only Jewish student in the district.

According to the Houston Chronicle, the three students called Nevelow a "dirty Jew" and threatened to hang him. Nevelow's father, Eric, a law enforcement officer in Galveston County, said the harassment has been going on for two years and that school officials turned a blind eye toward it. On other occasions, Eric Nevelow said, students made Nazi salutes in front of his son and scrawled swastikas on his book covers.

Despite the religious tensions at the school, some parents remain convinced that school-sponsored prayer is appropriate. The Rev. Bob Ward, father of student Marian Ward, who gained national attention earlier this year when she went to court seeking the right to pray over the loudspeaker, told, a Religious Right-oriented web-based news service, that his daughter did the right thing. (Marian Ward managed to parlay her prayer appearance into minor celebrity status. Last month, she delivered an invocation before the Texas Re­publican Convention.)

But other parents were not impressed with the Ward family's insistence on such "in-your-face" forms of public prayer. Debbie Mason, a Santa Fe resident who risked community approbation by speaking out against the prayer policy, told The Washington Post she was relieved by the high court's ruling.

The justices, Mason said, "taught us we should always keep the separation of church and state, that just because you're in the majority, that does not give you the right to hurt other people."

Continued Mason, an American Baptist, "There were a lot of people down here who were hurt. This pitted religion versus religion, child against child. That's not what we want."