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High court strikes down prayer at football games

WASHINGTON (BP)–A Texas school district policy permitting public prayer before football games is unconstitutional, even when the prayer is composed and led by a student, the U.S. Supreme Court announced June 19. The opinion elicited concern and criticism from Christian leaders and religious liberty organizations.

In a 6-3 decision, the high court ruled against a policy in a Galveston County school district that permitted the high school student body to determine if it wanted a student to speak over the public address system before football games. If so, the students elected the speaker, who determined whether he would pray or give some other message.

Such prayers delivered with the approval of the Santa Fe Independent School District violate the First Amendment’s prohibition against government establishment of religion, the court said in its opinion. “The delivery of such a message — over the school’s public-address system, by a speaker representing the student body, under the supervision of school faculty and pursuant to a school policy that explicitly and implicitly encourages public prayer — is not properly characterized as ‘private’ speech,” Associate Justice John Paul Stevens wrote in the majority opinion.

Chief Justice William Rehnquist, however, sharply criticized the decision, calling it unfaithful to the establishment clause in both its ruling and tone. The majority “distorts existing precedent” to reach its conclusion, which “bristles with hostility to all things religious in public life,” Rehnquist wrote in his dissenting opinion.

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, concurred the decision was a hostile one, describing the court as “dangerously adrift from the people’s will.” Land said, “At this point, I think we have to ask ourselves the question: ‘Do we still have government of the people, by the people and for the people, or have we surrendered our liberties to six lawyers in black robes who constituted the court majority in this case?'”

The high court’s ruling, which upheld one in the Fifth Circuit Court of Appeals, relied upon another one of its controversial church-state decisions, a 1992 opinion striking down a school administration-organized, clergy-led prayer at a graduation ceremony. That case, Lee v. Weisman, involved the prayer of a Jewish rabbi at a middle school graduation.

In his opinion in this case, Santa Fe Independent School District v. Doe, Stevens said the prayers offered under the policy not only were not private speech but did “nothing to protect minority views but rather [placed] the students who hold such views at the mercy of the majority. … [T]he District’s elections are insufficient safeguards of diverse student speech.”

The district’s policy said the purpose of the pregame message was “to solemnize the event.” Stevens wrote, “A religious message is the most obvious method of solemnizing an event.

“Regardless of the listener’s support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval.”

While not all students are required to attend football games, some are, such as team members, band members and cheerleaders, Stevens wrote. “[T]he choice between whether to attend these games or to risk facing a personally offensive religious ritual is in no practical sense an easy one,” he wrote.

The majority’s ruling is not only wrong but pre-emptive, Rehnquist wrote.

The school district “exhibited a willingness to comply with, and exceed, establishment clause restrictions,” Rehnquist wrote. “Thus, the policy cannot be viewed as having a sectarian purpose.

“[T]he policy itself has plausible secular purposes.”

The vote could have resulted in not having a pregame speaker or in having an election focused on something other than prayer, such as “public speaking ability or social popularity,” Rehnquist wrote.

Any pregame speech that resulted from the policy “would be private, not government, speech,” he said.

“The policy at issue here may be applied in an unconstitutional manner, but it will be time enough to invalidate it if that is found to be the case.”

Associate Justices Sandra Day O’Connor, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer signed on to Stevens’ opinion.

Associate Justices Antonin Scalia and Clarence Thomas joined Rehnquist in dissent.

The ERLC’s Land said he “was disappointed but not surprised” at the ruling.

“I was fearful that this court would be turned off by the fact that this arrangement provided for a majority-determined solemnizing event,” Land said. “It would have been interesting to have seen what the court would have done had the school district provided for student volunteers to come forward to solemnize additional athletic events during the school year. It might have been enough to tip O’Connor and Kennedy into agreeing with Rehnquist and Scalia and Thomas.

“I had hoped that the court would affirm the Santa Fe practice, understanding the minority does not have a right to silence the majority either.

“It would seem that the only remedy left to the American people is to follow the avenues provided by the Constitution to correct a Supreme Court so dangerously adrift from the people’s will. And those avenues are, first, to amend the Constitution, thus giving the court more specific instruction about such an issue and, second, to elect presidents who will only nominate and senators who will only confirm future justices who will correct the damage done in this egregious decision.”

The Baptist Joint Committee on Public Affairs hailed the ruling.

“This constitutional prohibition is good for religion and religious liberty,” said Melissa Rogers, the BJC’s general counsel, in a written release. “The court correctly recognized that precious individual liberties like religious freedom aren’t up for a vote; they shouldn’t depend on the outcome of an election.

“The court has been faithful in distinguishing between private religious expression, which the Constitution protects, and government-endorsed religious expression, which the Constitution forbids.”

Among others commenting on the opinion:

— Newly elected SBC President James Merritt said, “I think it is a sad day in America. I think it is a gross misreading of a very simple constitutional right. We turned the Constitution upside down.”

— American Center for Law and Justice chief counsel Jay Sekulow, who represented the school district before the high court, said, “The opinion blurs the distinction between government speech and private speech. It is the free speech of the students that has been censored.”

— Acting Midwestern Baptist Theological Seminary President Michael Whitehead, a professor of church-state law, said, “America’s courts have been refereeing school prayer for over 40 years. In this latest judicial scrimmage, it is student prayer that has been made a political football, and religious freedom has been sacked with unnecessary roughness.”

— Fellowship of Christian Athletes President Dal Shealy said, “The Supreme Court’s decision to stop students from arranging stadium prayers prior to football games is a bizarre and ironic intrusion in the religious life and expression of America’s student athletes. The Fellowship of Christian Athletes has one warning to the Supreme Court: If we choose to remove truly positive influences, such as prayer, from our schools, we must no longer be perplexed when appalling tragedies become increasingly and disturbingly common.”

— National Day of Prayer Task Force Vice Chairman Jim Weidmann said, “One of the first things our government did in the early days of this country was call upon its citizens to pray. The fact that our government is insulting the institution of prayer to the point that it would be illegal for a student to say a 30-second prayer before a football game is very disheartening.”

Todd Starnes, Dwayne Hastings and King Sanders contributed to this article.