Hail Mary, Queen of Victory
“Our Father who art in heaven
Help us beat Central, 29-7
Yaaaaaaaaay team!”
The issue before the court in Santa Fe Independent School District vs. Doe is whether a prayer before public-school football games violates the constitutional prohibition on governmental “establishment” of religion.
The Establishment Clause was drafted, to quote Jefferson, to “erect a wall of separation between church and state.” And not the kind of wall you’d see at Fenway. While the contours of Establishment Clause jurisprudence are hardly clear, we know the court has held that reading state-composed “nondenominational” prayers in public-school classrooms is unconstitutional ( Engel vs. Vitale), as is reading the Bible ( Abington School District vs. Schempp). A 1985 case found “voluntary silent prayer” in public schools unconstitutional ( Wallace vs. Jaffree), although 25 states currently have “moment of silence” statutes. Reciting the Pledge of Allegiance in public school does not violate the Establishment Clause (God stuff notwithstanding), as it’s not state-endorsed worship ( Lynch vs. Donnelly). And, finally, in 1992, the court in Lee vs. Weisman held that nondenominational prayer by a rabbi at a graduation ceremony violated the Establishment Clause because students felt “psychologically coerced” into attending, graduation being “one of life’s most significant occasions.”
Next, to football.
These cases are confused by the fact that they may be convoluted plurality decisions with questionable precedential force. Enter the (very) Independent School District of Santa Fe, Texas, with a policy of electing a student “pre-game speaker” to give a “message/invocation” before each football game. The school district was sued by two sets of parents—one Mormon and one Catholic—on Establishment Clause grounds.
The plaintiffs alleged that the school district was a repeat offender with a long history of sectarian practices. At one time, “student chaplains” led prayer over the school’s PA system before games. After the parents sued, the school changed its policy to allow for “speeches that need not be in any way religious” to help “solemnize” football games. (Not being a fan myself, I’d submit that the prospect of several hours of boys launching themselves at an inflated pig is already solemn enough.)
The revised policy did not satisfy the parents, who argue that under cover of this neutral policy, students will keep electing students who “choose” to offer sectarian prayer. Indeed, as the suit made its way to the Supreme Court, the team’s 1999 season home opener was “solemnized” with a prayer by senior Marian Ward, who received a standing ovation for her efforts.
The Fifth Circuit accused the school of “concoct[ing] a thinly-veiled surrogate process by which a very limited number of speakers … deliver prayers denominated as invocations.” They held the football policy impermissible because, unlike graduations, football games “hardly” need to be “solemnized with prayer.”
Apparently, nobody told the Fifth Circuit what I learned today: that—at least in Texas—”football is football.”
It’s immediately clear that some of the justices will have a hard time overlooking the fact that both historically and in practice, the school’s neutral policy is an end run around existing jurisprudence. Devoted students have stipulated that they will continue to offer the kinds of Christian prayer favored by the majority of the students. These kids want to pray. Early in the first quarter, Justice Souter tackles the school district’s Jay Sekulow.
“What does it mean to solemnize a football game?” When Sekulow says football games might benefit from “respect, honor, dignity … a secular invocation,” Souter replies, “That’s a nice speech. But it’s not an ‘invocation.’ ” He takes off the gloves: “You are asking us to shut our eyes to what the sequence of school provisions shows—the ‘student chaplain’ has become ‘speaker’ and ‘invocation’ is a ‘non-invocation.’ But we have no basis to believe what goes on will be any different.”
Sekulow reminds him that the parents have presented a facial challenge (the most difficult constitutional challenge going, a facial challenge requires that under no set of facts can the policy be deemed constitutional). Souter shoots back that even under a facial challenge, “we’re not required to close our eyes and wait for a Hail Mary.” Sekulow suggests that given the circumstances, a Hail Mary would be appropriate. Souter doesn’t smile. Not much football in New Hampshire. Maybe if this were a hockey case …
Justice Ginsburg offers a rare insight into her own girlhood days as a cheerleader when she questions the school’s willingness to broadcast as the invocation: “break their necks/ make them wrecks/ buckle down boys!” Justice Kennedy—who authored the majority opinion in the graduation prayer case, rushes Sekulow over the fact that the student speaker is elected. He asks whether a schoolwide election over religious prayer isn’t precisely the situation the Establishment Clause seeks to avoid.
Sekulow drops back to the district’s party line: The school is not making the choice to offer a prayer; students are electing a student who may or may not do so. The student, he says, makes the choice and is thus the “circuit breaker” who avoids entangling the school with religion. Neither O’Connor nor Kennedy seems to agree that this circuit breaker would be elected on the basis of anything other than the promise of prayer.
Souter reminds Sekulow that even if the student were chosen neutrally, and even if it were the student’s choice to offer a prayer, the school would still be providing the forum for prayer, and other students would still be forced to listen. To which Sekulow replies that the student’s religious speech is protected under the First Amendment’s free speech provisions. And there’s the rub. When does my right to speak trump your right to be free from my proselytizing? And should that be determined by majoritarian vote?
Ginsburg asks Texas Attorney General John Cornyn—defending the school district—whether the policy ensures that a full spectrum of beliefs would eventually be aired. Scalia suggests that there is no political spectrum of “solemnizing speech”—including a prayer in memory of the football team killed in a car crash.
By way of background, 94 percent of the voters in this year’s Texas Republican primary approved a nonbinding resolution supporting student-initiated prayer at school sporting events. And George W. Bush filed an amicus brief in this case supporting student-led prayer. Whether the Santa Fe policy is expressly pro-religion or just de facto administered that way, the majority of the students—perhaps Texans—want it. So where’s the problem?
Justice Breyer observes that the school district has “figured out a way to get majority prayer.” He wonders if under the circumstances the minority isn’t even more left out than before.
Anthony Griffin, representing the plaintiffs, is unique in several ways. He is the first African-American I’ve seen argue before the court. He is also so relaxed as to seem, well, casual. When Ginsburg asks him a tough question, he replies, “I’ve thought about that a lot.” He answers Scalia with, “I know it sounds strange, but …” And more than once, his answer to questions about why football games are coercive in Texas is: “Football is football.”
Both Scalia and Rehnquist grill him on why the plaintiffs were shielded by the name “Doe.” Scalia wonders whether we have a right to sue anonymously in federal court just because, for some reason or other, we are “ashamed to bring suit.” Griffin explains that there was a history of threats and intimidation to the families. He launches into a discursive history of the school’s sectarian policies, which Rehnquist cuts off with, “Why are you going into antecedent detail when we granted cert[iorari] only on the present policy?” This is the obverse of Souter’s problem—how to evaluate the present policy without considering its historical context. When Griffin replies that the policy seeks to give prayer a “free pass,” Kennedy replies that the court won’t get involved in telling school districts that their policies don’t mean what they say they mean.
Griffin gets tangled up defending his position that the policy is facially invalid. Scalia opines that if the school elects only one non-praying student, the facial challenge fails. Griffin asserts that in failing to create an “open forum” for all messages, including anti-religious ones, the policy is facially unconstitutional. Griffin’s suggestion—”we can’t divorce ourselves from the context,” elicits Ginsburg’s surprised, “Are you saying we can never purge the past?”
Finally, Griffin is asked to tackle the difference between graduations and football. Rehnquist suggests that students don’t have to go to football games.
Griffin: “Football is football in Texas.”
Scalia asks whether anyone is forced to be a cheerleader, band member, or football player.
Griffin: “When you’re a teen-ager, yes.”
Is he suggesting that the school debaters could constitutionally pray before competitions because nerds don’t feel coercion like the popular kids?
Griffin distinguishes football in that players are “bused in, the principal shows up, pep rallies are held in school, people idolize football players.” It begins to sound like a religious event—complete with idolatry and chanting. Griffin appears to be asserting that religion cannot be layered over football because—at least in Texas—football is a religion already, so much so that asking students to miss a game is heresy. Of course the Catch-22 is that if football weren’t viewed as quasi-religious in Texas, no one would be asking to pray before games.
No one is praying before the state debate finals. And I guess God doesn’t do science fairs.
The court will have to decide this issue on two unanswerable questions: When is a stated policy the real policy, and when is football only a game?
