Santa Fe Ind. School District v. Doe
530 US 290 (Decided June 19, 2000)
At issue in this case was whether the petitioner's policy of permitting student-led, student-initiated prayer at football games violates the Establishment Clause. In a 6-3 ruling, the Court held that it did. In so deciding, the Court relied primarily on its Lee case (1992), which invalidated graduation prayer of a rabbi at a public high school ceremony in that the prayer, partly because of its coercive tendencies, had indicia of district (i.e., governmental) endorsement of religion.
The Santa Fe Independent School District ("District") is a public school district of about 4,000 students in Texas. All who know about religion and high school football in Texas know that football approaches iconic and religious status. Therefore, it had been a common practice for a student-led invocatory prayer to be offered over the school public address system before each varsity football game. Student-led prayer was also offered at graduation ceremonies.
In 1995, a federal District Court held that a student-led graduation prayer was legitimate only if the prayer was a nonsectarian, nonproselytizing prayer. In response to the Order, the District adopted a series of policies allowing prayer in both graduation and football contexts. With respect to the latter, the student body would elect a student "Chaplain" who would be responsible for saying a prayer before all home football games. The Court of Appeals disallowed this practice because of a 1995 Fifth Circuit Opinion (Duncanville) which differentiated between graduation and sporting events student-led prayers, the former of which could pass constitutional muster if it was nonsectarian but the latter of which was not appropriate, even if led by students. The US Supreme Court granted certiorari only on the "football prayer" issue.
Justice Stevens, writing for the majority, appealed to Lee for the principle that though government must accommmodate the free exercise of religion, this accommodation "does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise..." The Court held that this kind of prayer not only involved a form of government coercion but also represented a governmental approval and endorsement of a particular form of religion. "Like the student referendum for funding in Southworth (also a 2000 case), this student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority."
But it was the school's endorsement of religion that was the focus of most of Justice Steven's opinion. Once a student speaker is selected, the invocation is delivered to a large audience at a regularly-scheduled, school-sponsored function on school property. The message is broadcast over the school's public address system, which is controlled by school officials. Everything in the context in which the prayer is delivered suggests school endorsement of the entire event.
The District argued that the secular purpose of the policy, "to foster free expression of private persons...as well as to solemnize sporting events, promote sportsmanship and student safety..." as well as the fact that the student speech makes the prayers "private speech" rather than "government speech" should insulate the policy from an Establishment Clause attack. Indeed, they argued that in a "limited public forum" as in Rosenberger (1995) a government sponsorship of an event did not make the speech in the event government speech. However, the Court rejected these points and advanced a three-fold argument: that the District failed to divorce itself from the religious content of the invocations, that the District policy by its terms invites and encourages religious messages, and that the "voluntary" nature of attendance at a football game (in contrast to the required character of a graduation ceremony) does not eliminate the coercive nature of the prayer because of the social pressures, provided by the government action, to participate in an act of religious worship.
Most interesting to me about the dissenting opinion (authored by Chief Justice Rehnquist, with Scalia and Thomas agreeing) is the way that the disagreement with the majority is cast as a linguistic difference. Rather than the student chaplain offering an invocation, the dissenters saw the student body electing a "speaker" who would give a pre-game "message." They held out for the possibility that the student speaker who was elected might want to dispense with prayer. Because of this possibility, the dissenters argued that it was improper for the majority to disallow the practice, since no one had yet suffered any injury. The case would be ripe when and if a student speaker offered a prayer in this context.
But one gets the impression from the dissenters that even if the student had offered a nonsectarian prayer in this context and a suit were filed, that such a prayer would not offend the Establishment Clause.* The dissenters would hold that the policy
[*It is unclear to me if the dissenters would hold that an expressly Christian pre-game prayer over the public address system, if student-led by elected student would run afoul of the Establishment Clause.]
had a secular purpose. In addition, the private speech of the students ought to insulate it from the kind of analysis the Court gave for government-sponsored speech.
Just as the Court's Establishment Clause cases of the 1970s - 1990s were given over to minute distinctions that ultimately were untenable (i.e., public school provision to parochial schools of secular textbooks which contained a map was permissible but provision of the map as a wall-hanging would be impermissible), one wonders whether the cases of the 2000s might be taken up with various kinds of prayer by various kinds of people in different public settings. The First Amendment clauses are certainly not the only "culprit" in this jurisprudence; the deep, conflicting and often inchoately-expressed feelings of Americans toward religion, which the Court is required to limn, are perhaps the bigger issue.
Copyright © 2004-2007 William R. Long