Backers of school prayer praise high court’s decision to hear Texas case

Tuesday, November 16, 1999

For more than a decade, lawyer Jay Sekulow and the religious right have tried to reshape the debate over school prayer into a battle for the free-speech rights of religious students.

When the issue is framed in terms of the establishment clause of the First Amendment, pro-prayer activists usually lose before the Supreme Court. But freedom of speech is a gambit the high court rarely rejects, reasons Sekulow, chief counsel of the American Center for Law and Justice.

Yesterday, the Supreme Court signaled that it has gotten Sekulow’s message, agreeing to consider a Texas case in which a lower court said students could not offer religious benedictions at public high school football games.

“The free speech issue is squarely before them, and they won’t be able to avoid it,” said a joyful Sekulow yesterday afternoon. “It’s a critical free-speech case that has national implications in every school district in America.”

Because of the free-speech issue, the Texas case — Santa Fe Independent School District v. Doe — may well represent the best chance yet for prayer advocates to persuade the Supreme Court to reopen the door it shut in 1962, when it barred teacher-led prayer in public schools. It is conceivable that the current conservative court, which has already shown signs of greater accommodation of religion in public settings, will sympathize with religious students who feel muzzled by the lower court’s anti-benediction ruling.

“It should not be that all messages are acceptable at a football game except for a prayerful message,” said Kelly Coghlan, lawyer for several Santa Fe students who want the benedictions allowed again.

Because of this free-speech argument, advocates of church-state separation reacted with concern about the high court’s action yesterday. “This may be the case that gets the court to relax their standards,” lamented Joseph Conn of Americans United for Separation of Church and State.

What is less clear is how much of a relaxation will result, and whether prayer will get no closer to the classroom than the football field nearby.

A major issue in the Texas case will be how to characterize pre-game benedictions at football games in terms of the factors the court has traditionally used to assess school prayer.

One concern the court has had with classroom prayer and with graduation ceremony invocations is that they are recited before a “captive audience” of students who have little choice but to listen to a religious sentiment with which they may disagree. An after-hours football game is a less mandatory setting, though some have observed that in Texas, attendance at football games is just as high, if not higher than at graduations.

The other major factor is the extent to which school officials are involved with, or can be seen as endorsing, the religious sentiment. In the case before the court, students at Santa Fe High School elect a fellow student who chooses his or her message to give before football games. But, as opponents of the practice point out, the benediction is given over the school loudspeakers, and school officials retain the power to shut off the microphone if they disapprove of the message.

“There is really no benefit to giving fans the impression that they must accept a particular religious viewpoint in order to be a part of the team,” said Carole Shields, president of People for the American Way, which opposes the Texas practice.

But the lower court in the Texas case used its own, apparently unique, set of factors in deciding that football prayer was unconstitutional. The 5th U.S. Circuit Court of Appeals said that a non-proselytizing student-given benediction was appropriate at graduation ceremonies, but not at football games. A graduation is a solemn event, the court said, where a prayer would be appropriate. A weekly football game, on the other hand, is in the words of the court “hardly the sober type of annual event that can be appropriately solemnized with prayer.”

Whether the Supreme Court will articulate the same — or any — distinction between football prayer and graduation prayer will be significant in gauging the impact of the court’s decision in the case. If it confines its ruling to the sports setting, its impact on the general church-state landscape could be limited.

The court’s decision to take up the Texas case comes less than a month before it will hear arguments in Mitchell v. Helms, a Louisiana case that will examine a federal program that loans computers and other equipment to parochial schools. The Texas case will be heard next spring, with a decision unlikely before June.

“It’s going to be a blockbuster term,” said Sekulow.