In response to the lawsuit, the Santa Fe school district in October 1999 established a pre-game ceremony policy that allows students to deliver a message to "solemnize" the event of a varsity football game and to "promote good sportsmanship and student safety."
But before any student can be given the microphone for a prayer, the entire high school must conduct an election each spring by secret ballot to determine whether students desire to have a statement or invocation before a home game. If the students vote yes, then the students must select one student from among volunteers to give the pronouncement. No campaigning of any kind by interested parties may take place on the school premises. In addition, the school may not exercise any supervision or control over the words the selected student chooses to deliver.
The federal trial judge in Texas gave a limited approval to student prayer, but on Feb. 26, 1999, the U.S. Court of Appeals for the Fifth Circuit determined that the practice in question violated the constitutional prohibition against an establishment of religion. This ruling was intertwined with the question of student-led prayers at high school graduations. That issue has not yet been resolved by the U.S. Supreme Court, but prayers at athletic events may be contrary to the letter and the spirit of the Supreme Court’s decision (5 to 4) in Lee v. Weisman (1992), which disallowed any school-sponsored invocation or benediction by a minister of religion at the graduation of a public high school.
The Fifth Circuit Court of Appeals in Doe v. Santa Fe ruled 2 to 1 that the handing over of a microphone to a student to read a prayer fails the first test in the Supreme Court’s Lemon decision; its primary effect is to benefit religion. The court reasoned that the prayer will be delivered to a "government-organized audience, by means of government-owned appliances and equipment, on government-controlled property at a government-sponsored event."
The court also ruled that the practice in Santa Fe conveys the message that "religion is favored, preferred or promoted over other beliefs."
The dissenting judge, E. Grady Jolly, argued that the position of the Santa Fe school is neutral and that the prayers were student-led and did not have the coercive power of the government.
On April 7, 1999, the Fifth Circuit Court of Appeals refused to overrule its panel of three judges. Judge Jolly again dissented with six other members of the court. He wrote with some vehemence complaining of a "jurisprudential quagmire." He cites with approval the Supreme Court decision in Rosenberger (1995), which held that the University of Virginia in its general funding of student activities violated the Constitution’s guarantee of a free press by excluding a publication that was religious and evangelical in its orientation.
Several "friend of the court" briefs have been filed in the Santa Fe case. One is from the Liberty League Institute, representing several Texas parents and students. Other briefs are from organizations that generally endorse a strict separation of church and state and will therefore oppose the prayers at public events, even if they are led by students chosen by other students.
The challenged prayer has deep roots in Texas, where in a recent poll 82 percent of the voters supported the position taken in a brief filed by Gov. George W. Bush and others asking the Supreme Court to reverse the Fifth Circuit Court.
It would be nice if one could isolate some clear strands in the church-state jurisprudence of the Supreme Court and apply them to student-led prayers at a public high school football game. But that is not easy or even possible. In some 40 decisions over 50 years, the Supreme Court has tried to harmonize the ban on government advancement of religion contained in the establishment clause of the First Amendment with the full guarantee of the free exercise of religion in the same amendment. But the parsing of the 16 words sometimes yields results that appear to be in tension. The Santa Fe case appears to be in that category. If the Supreme Court concludes that there is a forbidden form of state endorsement in prayer recited at public high school football games, it is quite possible that many local communities in Texas and possibly elsewhere would continue the practice, perhaps in some modified form. The practice has taken on the form of a custom that is accepted and expected by students and their communities.
The Supreme Court will no doubt take this possible defiance into consideration. The moral authority of the Supreme Court is never enhanced when its decrees are widely disregarded. On the other hand, the nation’s schools have generally complied with the high court’s decrees. They have not allowed classes given by outside ministers of religion since this practice was forbidden in 1948 in the McCollum decision. Nor have school authorities allowed sectarian prayers or Bible readings since these practices were outlawed in the 1960’s.
Would a ban on prayers at school-sponsored football games receive comparable compliance? No one can really predict, since the prayers at school athletic events are intertwined with local tradition, deep civic pride and spontaneous student initiatives.
But it is possible that prayers at athletic events may fade away for reasons not directly related to the legal and constitutional issues involved. There is something artificial and inappropriate when officials silence several thousand people before a local football game in order to give the microphone to a senior in high school to say what he or she desires. Is the prayer for the safety of the players or for the improvement of the morale of the community?
The objectives of the practice set forth by the Santa Fe school district do not appear cogent or even coherent.
No matter what the ultimate justification or rationalization given to the practice, it is undeniable that one form of Christian piety (in most cases Baptist) is being preferred and imposed on all present regardless of their desires or wishes.
If the Supreme Court permits the student-led prayers at issue in the Santa Fe case, countless parents and others will be grateful. They long for some recognition of religious values in public life. Even the increasing number of Hispanics, African Americans and Asians in Santa Fe and south Texas might be pleased if the student-initiated prayers at athletic events are allowed to continue. The hunger for some governmental affirmation of America’s common religious values is profound.
That desire was satisfied in part when Congress passed the Equal Access Act in 1984, a measure that requires public high schools that receive federal financial assistance to give the same access to their facilities to both religious and nonreligious student clubs that are extracurricular. These religious club members can participate in student-led Bible reading or religious practices at the time allowed for extracurricular activities. This measure was sustained in 1990 by the United States Supreme Court.
At the same time, the possible consequences of allowing a majority in any community to dictate the ethos or the atmosphere of how government interacts with religion are frightening. America’s Catholics until recently felt hindered or at least displeased by certain elements of a pan-Protestant culture. Devout Catholicslike the parents of the Catholic girl who is the co-plaintiff in the Santa Fe casedo not feel comfortable when the government is publicly advancing a religious point of view, even if it is consistent with their religious convictions. Finally, there is the fear that the public display of prayer tends to trivialize it.
The puzzle about God and football in Santa Fe is currently being considered by the Supreme Court. The decision will be handed down in late June. That ruling is not likely to be monumental. But it may put forth useful guidelines for religious leaders, educators, parents and students on how to be fair and impartial in a school system that every day tries to inculcate the basic principles of morality and spirituality in the minds and hearts of over 50 million young Americans.
Robert F. Drinan, S.J., is a professor at Georgetown University Law Center in Washington, D.C.