| Justice Stevens delivered the opinion of the
Court. |
|
| Prior to 1995, the
Santa Fe High School student who occupied the school’s elective
office of student council chaplain delivered a prayer over the public
address system before each varsity football game for the entire season.
This practice, along with others, was challenged in District Court as a
violation of the Establishment Clause of the First
Amendment. While these proceedings were pending in the District Court,
the school district adopted a different policy that permits, but does not
require, prayer initiated and led by a student at all home games. The
District Court entered an order modifying that policy to permit only
nonsectarian, nonproselytizing prayer. The Court of Appeals held that,
even as modified by the District Court, the football prayer policy was
invalid. We granted the school district’s petition for certiorari to
review that holding. |
After the U.S. Constitution
was ratified, U.S. Presidents and State Governors regularly proclaimed
days of prayer, fasting and thanksgiving. The same Congress that gave us
the First Amendment also gave us Congressional Chaplains. Yet when High
School students attempt to follow this example, they are taken to court.
The prayers offered by Presidents Washington, Adams, and Madison would
be considered "sectarian" by today's Court. They
were not. But they clearly violated the Secularist dogma of
"separation of church and state" which
now hobbles the Court's powers of analysis. These prayers might also
be considered "proselytizing" by today's standards. Obviously
the Founding Fathers did not agree with today's standards. |
|
I |
|
| The Santa Fe
Independent School District (District) is a political subdivision of the
State of Texas, responsible for the education of more than 4,000 students
in a small community in the southern part of the State. The District
includes the Santa Fe High School, two primary schools, an
intermediate school and the junior high school. Respondents are two sets
of current or former students and their respective mothers. One family is
Mormon and the other is Catholic. The District Court permitted respondents
(Does) to litigate anonymously to protect them from intimidation or
harassment.[1] |
There are undoubtedly
functional atheists in every denomination.
|
| Respondents commenced
this action in April 1995 and moved for a temporary restraining order to
prevent the District from violating the Establishment Clause at the
imminent graduation exercises. In their complaint the Does alleged that
the District had engaged in several proselytizing practices, such as
promoting attendance at a Baptist revival meeting, encouraging membership
in religious clubs, chastising children who held minority religious
beliefs, and distributing Gideon Bibles on school premises. They also
alleged that the District allowed students to read Christian invocations
and benedictions from the stage at graduation ceremonies,[2]
and to deliver overtly Christian prayers over the public address system at
home football games. |
After the Constitution was
ratified and the first President chosen, Congress resolved en masse
to attend an Episcopalian revival meeting, and
in his First Inaugural Address, President Washington promoted
religion and invoked God's benediction in the following words:
Having thus imparted to you my sentiments as they
have been awakened by the occasion which brings us together, I
shall take my present leave; but not without resorting once more
to the benign Parent of the Human Race in humble supplication
that, since He has been pleased to favor the American people with
opportunities for deliberating in perfect tranquillity, and
dispositions for deciding with unparalleled unanimity on a form of
government for the security of their union and the advancement of
their happiness, so His divine blessing may be equally conspicuous
in the enlarged views, the temperate consultations, and the wise
measures on which the success of this Government must depend.
Messages and Papers of the Presidents, George
Washington, vol. 1, p.45-46 |
Undoubtedly a public address system would have been used if available. |
| On May 10, 1995, the
District Court entered an interim order addressing a number of different
issues.[3] With respect to the impending
graduation, the order provided that “non-denominational prayer”
consisting of “an invocation and/or benediction” could be presented by
a senior student or students selected by members of the graduating class.
The text of the prayer was to be determined by the students, without
scrutiny or preapproval by school officials. References to
particular religious figures “such as Mohammed, Jesus, Buddha, or the
like” would be permitted “as long as the general thrust of the prayer
is non-proselytizing.” App. 32. |
"Proselytizing"
means telling someone your side is a good one, and encouraging them to
adopt your position. It does not mean "force,"
"brow-beating," or "ridicule." Speaking of
Reconstruction in the South following the Civil War, Abraham Lincoln said:
If, on the contrary, we sustain and recognize the new government of
Louisiana, the converse of all this is made true. We encourage the
hearts and nerve the arms of 12,000 to adhere to their work and argue
for it, and proselyte for it, and fight for
it, and feed it, and grow it, and ripen it to a complete success.
George Bancroft, in his History of the United States, Vol.6,
p.197, writes:
From this state of despair the country was lifted by Madison and
Virginia. The recommendation of a plenipotentiary convention was well
received by the assembly of Virginia. The utter failure of congress
alike in administration and in reform, the rapid advances of the
confederation toward ruin, at length proselyted
the most obstinate adversaries to a political renovation.
In volume 6, p.269 he records "The Adjustment of Representation,
July 3-23, 1787" in the Constitutional Convention:
Four of the six states which demanded a proportioned representation
stubbornly refused to yield. It was of decisive influence on the history
of the country that Strong and Gerry, balancing the inflexible King and
Gorham, pledged Massachusetts at least to neutrality. The decision was
given by North Carolina, which broke from her great associates and gave
a majority of one to the smaller states. More than ten years before,
Jefferson had most earnestly proposed this compromise, seeking to proselyte
John Adams, to whom he wrote: "The good whigs will so far cede
their opinions for the sake of union." He heard with great joy that
his prophecy had come to pass.
Read President Adams' proclamation of a national
day of prayer and imagine the Supreme Court's reaction if a lowly
school principal had made the same proselytizing proclamation. |
| In response to that
portion of the order, the District adopted a series of policies over
several months dealing with prayer at school functions. The policies
enacted in May and July for graduation ceremonies provided the format for
the August and October policies for football games. The May policy
provided: |
|
|
“ ‘The board has chosen to permit the
graduating senior class, with the advice and counsel of the senior
class principal or designee, to elect by secret ballot to choose
whether an invocation and benediction shall be part of the
graduation exercise. If so chosen the class shall elect by secret
ballot, from a list of student volunteers, students to deliver nonsectarian,
nonproselytizing invocations and benedictions for the purpose of
solemnizing their graduation ceremonies.’ ” 168 F.3d 806,
811 (CA5 1999) (emphasis deleted). |
|
There would be nothing
unconstitutional about a school teacher or other administrator obeying the
proclamation of President John Adams and leading those assembled for
graduation ceremonies in prayer. But the Supreme Court has been noticeably
hostile to things religious, so the School District tried to distance
itself as much as possible from the actions of the students, by permitting
the student body to vote in two separate elections on the question of whether
to have a student lead an invocation, and who
that student would be. |
| The parties stipulated that after this policy
was adopted, “the senior class held an election to determine whether to
have an invocation and benediction at the commencement [and that the]
class voted, by secret ballot, to include prayer at the high school
graduation.” App. 52. In a second vote the class elected two seniors to
deliver the invocation and benediction.[4] |
|
| In July, the District
enacted another policy eliminating the requirement that invocations and
benedictions be “nonsectarian and nonproselytising,” but also
providing that if the District were to be enjoined from enforcing that
policy, the May policy would automatically become effective. |
|
| The August policy,
which was titled “Prayer at Football Games,” was similar to the July
policy for graduations. It also authorized two student elections, the
first to determine whether “invocations” should be delivered, and the
second to select the spokesperson to deliver them. Like the July policy,
it contained two parts, an initial statement that omitted any requirement
that the content of the invocation be “nonsectarian and
nonproselytising,” and a fallback provision that automatically added
that limitation if the preferred policy should be enjoined. On August 31,
1995, according to the parties’ stipulation, “the district’s high
school students voted to determine whether a student would deliver prayer
at varsity football games… . The students chose to allow a student
to say a prayer at football games.” Id., at 65. A week later, in
a separate election, they selected a student “to deliver the prayer at
varsity football games.” Id., at 66. |
This case invalidates the
selection by students of an individual who will deliever a public
invocation. This policy has long been the practice of the government. In
The Public Papers of the Presidents, L. B. Johnson, 1965, p.374,
we find in Item 158 that before President Johnson delivered his
"Remarks at the Retirement Ceremony of Gen. John K. Gerhart, USAF,
April 2, 1965,"
| NOTE: The President spoke at 11:35 a.m. in the East
Room at the White House following an invocation
by Rev. Billy Graham. |
|
| The final policy
(October policy) is essentially the same as the August policy, though it
omits the word “prayer” from its title, and refers to “messages”
and “statements” as well as “invocations.”[5]
It is the validity of that policy that is before us.[6] |
|
| The District Court did
enter an order precluding enforcement of the first, open-ended policy.
Relying on our decision in Lee v. Weisman, 505
U.S. 577 (1992), it held that the school’s “action must not ‘coerce
anyone to support or participate in’ a religious exercise.” App. to
Pet. for Cert. E7. Applying that test, it concluded that the graduation
prayers appealed “to distinctively Christian beliefs,”[7]
and that delivering a prayer “over the school’s public address system
prior to each football and baseball game coerces student participation in
religious events.”[8] Both parties
appealed, the District contending that the enjoined portion of the October
policy was permissible and the Does contending that both alternatives
violated the Establishment Clause. The Court of Appeals majority agreed
with the Does. |
The policy no more
violated the Establishment Clause than did the actions of the
First Congress, in "coercing" the entire inaugural party to
attend church. |
| The decision of the
Court of Appeals followed Fifth Circuit precedent that had announced two
rules. In Jones v. Clear Creek Independent School Dist., 977
F.2d 963 (1992), that court held that student-led prayer that was approved
by a vote of the students and was nonsectarian and nonproselytizing was
permissible at high school graduation ceremonies. On the other hand, in
later cases the Fifth Circuit made it clear that the Clear Creek
rule applied only to high school graduations and that school-encouraged
prayer was constitutionally impermissible at school-related sporting
events. Thus, in Doe v. Duncanville Independent School Dist.,
70 F.3d 402 (1995), it had described a high school graduation as “a
significant, once in-a-lifetime event” to be contrasted with athletic
events in “a setting that is far less solemn and extraordinary.” Id.,
at 406—407.[9] |
|
| In its opinion in this
case, the Court of Appeals explained: |
|
|
“The controlling feature here is the same as in Duncanville:
The prayers are to be delivered at football games–hardly
the sober type of annual event that can be appropriately solemnized
with prayer. The distinction to which [the District] points is
simply one without difference. Regardless of whether the prayers are
selected by vote or spontaneously initiated at these
frequently-recurring, informal, school-sponsored events, school
officials are present and have the authority to stop the prayers.
Thus, as we indicated in Duncanville, our decision in Clear
Creek II hinged on the singular context and singularly serious
nature of a graduation ceremony. Outside that nurturing context, a
Clear Creek Prayer Policy cannot survive. We therefore reverse the
district court’s holding that [the District’s] alternative Clear
Creek Prayer Policy can be extended to football games, irrespective
of the presence of the nonsectarian, nonproselytizing restrictions.”
168 F.3d, at 823. |
|
Where does the U.S.
Constitution give the Supreme Court the power to decide whether football
games in local schools should or should not be "solemnized?"
The new rule appears to be: If a school official sees that prayer
is about to take place and does not actively intervene to stop
it, the school is guilty of "establishing a
religion."
|
| The dissenting judge
rejected the majority’s distinction between graduation ceremonies and
football games. In his opinion the District’s October policy created a
limited public forum that had a secular purpose[10]
and provided neutral accommodation of noncoerced, private, religious
speech.[11] |
|
| We granted the District’s
petition for certiorari, limited to the following question: “Whether
petitioner’s policy permitting student-led, student-initiated prayer at
football games violates the Establishment Clause.” 528
U.S. 1002 (1999). We conclude, as did the Court of Appeals, that it
does. |
|
|
II |
|
| The first Clause in the
First
Amendment to the Federal Constitution provides that “Congress shall
make no law respecting an establishment of religion, or prohibiting the
free exercise thereof.” The Fourteenth
Amendment imposes those substantive limitations on the legislative
power of the States and their political subdivisions. Wallace v. Jaffree,
472
U.S. 38, 49—50 (1985). In Lee v. Weisman, 505
U.S. 577 (1992), we held that a prayer delivered by a rabbi at a
middle school graduation ceremony violated that Clause. Although this case
involves student prayer at a different type of school function, our
analysis is properly guided by the principles that we endorsed in Lee. |
The Fourteenth Amendment was
not intended to apply the First Amendment to the States. Read
more here.
Read more about the case of Lee v. Weisman. |
| As we held in that
case: |
|
|
“The principle that
government may accommodate the free exercise of religion 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, or otherwise act in a way
which ‘establishes a [state] religion or religious faith, or tends
to do so.’” Id., at 587 (citations omitted) (quoting Lynch
v. Donnelly, 465
U.S. 668, 678 (1984)). |
|
|
| In this case the
District first argues that this principle is inapplicable to its October
policy because the messages are private student speech, not public speech.
It reminds us that “there is a crucial difference between government
speech endorsing religion, which the Establishment Clause forbids, and
private speech endorsing religion, which the Free Speech and Free
Exercise Clauses protect.” Board of Ed. of Westside Community Schools
(Dist. 66) v. Mergens, 496
U.S. 226, 250 (1990) (opinion of O’Connor, J.). We certainly agree
with that distinction, but we are not persuaded that the pregame
invocations should be regarded as “private speech.” |
The students hold an
election to decide if they want an invocation before their football games.
Then they cast ballots to decide which student should deliver the
invocation, if any. No pressure is put on the students as to the choice of
speaker, and the speaker's invocation is not written or edited by the
school district. The students and their elected speaker will be denied
their right to free speech and free exercise of religion, because the
Soopreme Court says this is not the students speaking, it is the school
district speaking. |
| These invocations are
authorized by a government policy and take place on government property at
government-sponsored school-related events. Of course, not every message
delivered under such circumstances is the government’s own. We have
held, for example, that an individual’s contribution to a
government-created forum was not government speech. See Rosenberger
v. Rector and Visitors of Univ. of Va., 515
U.S. 819 (1995). Although the District relies heavily on Rosenberger
and similar cases involving such forums,[12]
it is clear that the pregame ceremony is not the type of forum discussed
in those cases.[13] The Santa Fe
school officials simply do not “evince either ‘by policy or by
practice,’ any intent to open the [pregame ceremony] to ‘indiscriminate
use,’ . . . by the student body generally.” Hazelwood School Dist.
v. Kuhlmeier, 484
U.S. 260, 270 (1988) (quoting Perry Ed. Assn. v. Perry Local
Educators’ Assn., 460
U.S. 37, 47 (1983)). Rather, the school allows only one student, the
same student for the entire season, to give the invocation. The statement
or invocation, moreover, is subject to particular regulations that confine
the content and topic of the student’s message, see infra, at 14—15,
17. By comparison, in Perry we rejected a claim that the school had
created a limited public forum in its school mail system despite the fact
that it had allowed far more speakers to address a much broader range of
topics than the policy at issue here.[14]
As we concluded in Perry, “selective access does not transform
government property into a public forum.” 460 U.S., at 47. |
Don't ask your
teacher if you can pray at school. If she says "yes,"
then it becomes "authorized by a government policy and takes place on
government property at government-sponsored school-related events,"
and that would be unconstitutional, wouldn't it. |
| Granting only one
student access to the stage at a time does not, of course, necessarily
preclude a finding that a school has created a limited public forum. Here,
however, Santa Fe’s student election system ensures that only those
messages deemed “appropriate” under the District’s policy may be
delivered. That is, the majoritarian process implemented by the District
guarantees, by definition, that minority candidates will never prevail and
that their views will be effectively silenced. |
The district's policy of
"appropriate" is one imposed on it by the federal court
(non-sectarian, non-proselytizing). The requirement that the student
message be "solemnizing" as opposed to humor or home-team
partisanship surely cannot make the student speech
"unconstitutional."
The
dissent properly noted that the students were free to cast their votes
for a purely secular speaker, or choose a Buddhist or Hindu to give the
invocation. |
| Recently, in Board
of Regents of Univ. of Wis. System v. Southworth, 529 U.S. ___
(2000), we explained why student elections that determine, by majority
vote, which expressive activities shall receive or not receive school
benefits are constitutionally problematic: |
|
|
“To the extent the referendum substitutes majority
determinations for viewpoint neutrality it would undermine the
constitutional protection the program requires. The whole theory of
viewpoint neutrality is that minority views are treated with the
same respect as are majority views. Access to a public forum, for
instance, does not depend upon majoritarian consent. That principle
is controlling here.” Id., at __ (slip op., at 16—17). |
|
|
| Like the student referendum for funding in Southworth,
this student election does nothing to protect minority views but rather
places the students who hold such views at the mercy of the majority.[15]
Because “fundamental rights may not be submitted to vote; they depend on
the outcome of no elections,” West Virginia Bd. of Ed. v. Barnette,
319
U.S. 624, 638 (1943), the District’s elections are insufficient
safeguards of diverse student speech. |
In the West Virginia
v. Barnette case, the Court held that Jehovah's Witnesses did not
have to say the required flag salute. The Court did not hold that the
other students would not be allowed to say the flag salute so that the
JW's would have "freedom from religion." |
| In Lee, the
school district made the related argument that its policy of endorsing
only “civic or nonsectarian” prayer was acceptable because it
minimized the intrusion on the audience as a whole. We rejected that claim
by explaining that such a majoritarian policy “does not lessen the
offense or isolation to the objectors. At best
it narrows their number, at worst increases their sense of isolation and
affront.” 505 U.S., at 594. Similarly, while Santa Fe’s
majoritarian election might ensure that most of the students are
represented, it does nothing to protect the minority; indeed, it likely
serves to intensify their offense. |
Read
John Adams' Presidential Prayer Proclamation. Does it sound like he
felt under a constitutional obligation to avoid making infidels
and the irreligious feel "isolated?"
There is nothing -- absolutely nothing -- that guarantees atheists the
right to avoid feeling "offended" by hearing evidence that they
do not live in an atheistic nation, but rather live in a
Christian nation. |
| Moreover, the District
has failed to divorce itself from the religious content in the
invocations. It has not succeeded in doing so, either by claiming that its
policy is “‘one of neutrality rather than endorsement’”[16]
or by characterizing the individual student as the “circuit-breaker”[17]
in the process. Contrary to the District’s repeated assertions that it
has adopted a “hands-off” approach to the pregame invocation, the
realities of the situation plainly reveal that its policy involves both
perceived and actual endorsement of religion. In this case, as we found in
Lee, the “degree of school involvement” makes it clear that the
pregame prayers bear “the imprint of the State and thus put school-age
children who objected in an untenable position.” 505 U.S., at 590. |
According to those who signed
the Constitution, the district had an affirmative duty to promote
religion and morality, not to "divorce itself" from it.
The men who signed the Constitution believed that school-aged
children should be exposed to the Bible, the purest source of true
religion and the morality essential for a free
republic. |
| The District has
attempted to disentangle itself from the religious messages by developing
the two-step student election process. The text of the October policy,
however, exposes the extent of the school’s entanglement. The elections
take place at all only because the school “board has chosen to permit
students to deliver a brief invocation and/or message.” App. 104
(emphasis added). The elections thus “shall” be conducted “by the
high school student council” and “[u]pon advice and direction of the
high school principal.” Id., at 104—105. The decision whether
to deliver a message is first made by majority vote of the entire student
body, followed by a choice of the speaker in a separate, similar majority
election. Even though the particular words used by the speaker are not
determined by those votes, the policy mandates that the “statement or
invocation” be “consistent with the goals and purposes of this policy,”
which are “to solemnize the event, to promote good sportsmanship and
student safety, and to establish the appropriate environment for the
competition.” Ibid. |
What if they gave an election
and nobody came?
Does the Court believe that nobody in Texas wanted school prayer, and
the proselytizing school district dragged children in by their collars and
forced them to "vote" on whether or not they wanted to
"solemnize" their football games?
The Court admits that the district only held elections to try to
distance itself from the desires of the students to pray. But the Court
exposes its bias by noting that the School District is guilty of violating
the Establishment Clause if it does not actively intervene
to stop students from praying. |
| In addition to
involving the school in the selection of the speaker, the policy, by its
terms, invites and encourages religious messages. The policy itself states
that the purpose of the message is “to solemnize the event.” A
religious message is the most obvious method of solemnizing an event.
Moreover, the requirements that the message “promote good citizenship”
and “establish the appropriate environment for competition” further
narrow the types of message deemed appropriate, suggesting that a solemn,
yet nonreligious, message, such as commentary on United States foreign
policy, would be prohibited.[18]
Indeed, the only type of message that is expressly endorsed in the text is
an “invocation”–a term that primarily describes an appeal for divine
assistance.[19] In fact, as used in the
past at Santa Fe High School, an “invocation”
has always entailed a focused religious message. Thus, the expressed
purposes of the policy encourage the selection of a religious message, and
that is precisely how the students understand the policy. The results of
the elections described in the parties’ stipulation[20]
make it clear that the students understood that the central question
before them was whether prayer should be a part of the pregame ceremony.[21]
We recognize the important role that public worship plays in many
communities, as well as the sincere desire to include public prayer as a
part of various occasions so as to mark those occasions’ significance.
But such religious activity in public schools, as elsewhere, must comport
with the First
Amendment. |
Would atheists agree that "A religious message is the most obvious
method of solemnizing an event"?
After hearing John Adams' official proclamation of prayer, the Senate
issued its
|
Address of the Senate to John Adams,
President of the United States.
The PRESIDENT OF THE UNITED STATES.
SIR: Impressed with the important truth that
the hearts of rulers and people are in the hand of the Almighty,
the Senate of the United States most cordially join in your invocations
for appropriate blessings upon the Government and people of this
Union.
NOVEMBER 25, 1800.
Messages and Papers of the Presidents, John Adams,
vol. 1, p.298 |
This Court makes it clear that there is no way any public prayer could
ever "comport with the First Amendment." |
| The actual or perceived
endorsement of the message, moreover, is
established by factors beyond just the text of the policy. Once the
student speaker is selected and the message composed, the invocation is
then delivered to a large audience assembled as part of a regularly
scheduled, school-sponsored function conducted on school property. The
message is broadcast over the school’s public address system, which
remains subject to the control of school officials. It is fair to assume
that the pregame ceremony is clothed in the traditional indicia of school
sporting events, which generally include not just the team, but also
cheerleaders and band members dressed in uniforms sporting the school name
and mascot. The school’s name is likely written in large print across
the field and on banners and flags. The crowd will certainly include many
who display the school colors and insignia on their school T-shirts,
jackets, or hats and who may also be waving signs displaying the school
name. It is in a setting such as this that “[t]he board has chosen to
permit” the elected student to rise and give the “statement or
invocation.” |
In order to avoid
violating the Constitution, the School District must not "choose
to permit" any public prayer. |
| In this context the
members of the listening audience must perceive the pregame
message as a public expression of the views of the majority of the student
body delivered with the approval of the school administration. In
cases involving state participation in a religious activity, one of the
relevant questions is “whether an objective observer, acquainted with
the text, legislative history, and implementation of the statute, would
perceive it as a state endorsement of prayer in public schools.” Wallace,
472 U.S., at 73, 76 (O’Connor, J., concurring in judgment); see also Capital
Square Review and Advisory Bd. v. Pinette, 515
U.S. 753, 777 (1995) (O’Connor, J., concurring in part and
concurring in judgment). 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. |
Could the School District say
"The views of the student chaplain (and those of the Founding
Fathers) do not necessarily represent the views of the School
District"? Not given the restrictions in the paragraph above. |
| The text and history of
this policy, moreover, reinforce our objective student’s perception that
the prayer is, in actuality, encouraged by the school. When a governmental
entity professes a secular purpose for an arguably religious policy, the
government’s characterization is, of course, entitled to some deference.
But it is nonetheless the duty of the courts to “distinguis[h] a sham
secular purpose from a sincere one.” Wallace, 472 U.S., at 75 (O’Connor,
J., concurring in judgment). |
The School Districts stated
goals of "solemnizing" the football game truly were a
"sham." The School District inserted all kinds of
secular-sounding justifications for doing the things the Signers of the
Constitution did and expected to be done, because the Court has said that
every act of government must have a "secular
purpose." Obviously the School District did not really intend to
advance the
religion of Secularism, which is the only thing acceptable to this
Court. |
| According to the
District, the secular purposes of the policy are to “foste[r] free
expression of private persons … as well [as to] solemniz[e] sporting
events, promot[e] good sportsmanship and student safety, and establis[h]
an appropriate environment for competition.” Brief for Petitioner 14. We
note, however, that the District’s approval of only one specific kind of
message, an “invocation,” is not necessary to further any of these
purposes. Additionally, the fact that only one student is permitted to
give a content-limited message suggests that this policy does little to
“foste[r] free expression.” Furthermore, regardless of whether one
considers a sporting event an appropriate occasion for solemnity, the use
of an invocation to foster such solemnity is impermissible when, in
actuality, it constitutes prayer sponsored by the school. And it is
unclear what type of message would be both appropriately “solemnizing”
under the District’s policy and yet non-religious. |
The Court says the District policy does not "foster free
expression," so it puts a gag on the student-elected speaker. |
| Most striking to us is
the evolution of the current policy from the long-sanctioned office of “Student
Chaplain” to the candidly titled “Prayer at Football Games”
regulation. This history indicates that the District intended to preserve
the practice of prayer before football games. The conclusion that the
District viewed the October policy simply as a continuation of the
previous policies is dramatically illustrated by the fact that the school
did not conduct a new election, pursuant to the current policy, to replace
the results of the previous election, which occurred under the former
policy. Given these observations, and in light of the school’s history
of regular delivery of a student-led prayer at athletic events, it is
reasonable to infer that the specific purpose of the policy was to
preserve a popular “state-sponsored religious practice.” Lee,
505 U.S., at 596. |
|
| School sponsorship of a
religious message is impermissible because it sends the ancillary message
to members of the audience who are nonadherants “that they are
outsiders, not full members of the political community, and an
accompanying message to adherants that they are insiders, favored members
of the political community.” Lynch v. Donnelly, 465 U.S.,
at 688 (1984) (O’Connor, J., concurring). 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. |
Did Jefferson's Declaration
of Independence, with its trust in Providence,
and belief that men are created by God, make atheists "feel like
outsiders?"
Did Washington's Farewell address, in which he said our nation's
morality could not survive without religion, make the irreligious feel
like "second class citizens?"
If so many of the Founding Fathers violated the
"separation of church and state," who were the Founders that
promoted it? |
|
III |
|
| The District next
argues that its football policy is distinguishable from the graduation
prayer in Lee because it does not coerce students to participate in
religious observances. Its argument has two parts: first, that there is no
impermissible government coercion because the pregame messages are the
product of student choices; and second, that there is really no coercion
at all because attendance at an extracurricular event, unlike a graduation
ceremony, is voluntary. |
|
| The reasons just
discussed explaining why the alleged “circuit-breaker” mechanism of
the dual elections and student speaker do not turn public speech into
private speech also demonstrate why these mechanisms do not insulate the
school from the coercive element of the final message. In fact, this
aspect of the District’s argument exposes anew the concerns that are
created by the majoritarian election system. The parties’ stipulation
clearly states that the issue resolved in the first election was “whether
a student would deliver prayer at varsity football games,” App. 65, and
the controversy in this case demonstrates that the views of the students
are not unanimous on that issue. |
|
| One of the purposes
served by the Establishment Clause is to remove debate over this kind of
issue from governmental supervision or control. We explained in Lee
that the “preservation and transmission of religious beliefs and worship
is a responsibility and a choice committed to the private sphere.”
505 U.S., at 589. The two student elections authorized by the
policy, coupled with the debates that presumably must precede each,
impermissibly invade that private sphere. The election mechanism, when
considered in light of the history in which the policy in question
evolved, reflects a device the District put in place that determines
whether religious messages will be delivered at home football games. The
mechanism encourages divisiveness along religious lines in a public school
setting, a result at odds with the Establishment Clause. Although it is
true that the ultimate choice of student speaker is “attributable to the
students,” Brief for Petitioner 40, the District’s decision to hold
the constitutionally problematic election is clearly “a choice
attributable to the State,” Lee, 505 U.S., at 587. |
So let the students vote on
it and be done with it!
"Private religion" is a myth. In
his dissenting opinion in Lee v. Weisman, 505 U.S. 577 (1992),
Justice Scalia, joined by the Chief Justice, Justice White, and Justice
Thomas, noted both that public religion has long been a part of the
American system, and that it is pure folly to try to remove it:
| The reader has been told much in this case about
the personal interest of Mr. Weisman and his daughter, and very
little about the personal interests on the other side. They are
not inconsequential. Church and state would not be such a
difficult subject if religion were, as the Court apparently thinks
it to be, some purely personal avocation that can be indulged
entirely in secret, like pornography, in the privacy of one's
room. For most believers, it is not that, and has never been.
Religious men and women of almost all denominations have felt it
necessary to acknowledge and beseech the blessing of God as a
people, and not just as individuals, because they believe in the
"protection of divine Providence,"
as the Declaration of Independence put it, not just for
individuals but for societies; because they believe God to be, as Washington's
first Thanksgiving Proclamation put it, the "Great Lord
and Ruler of Nations."
One can believe in the effectiveness of such public worship, or
one can deprecate and deride it. But the longstanding American
tradition of prayer at official ceremonies displays with
unmistakable clarity that the Establishment Clause does not forbid
the government to accommodate it. |
|
| The District further
argues that attendance at the commencement ceremonies at issue in Lee
“differs dramatically” from attendance at high school football games,
which it contends “are of no more than passing interest to many students”
and are “decidedly extracurricular,” thus dissipating any coercion.
Brief for Petitioner 41. Attendance at a high school football game,
unlike showing up for class, is certainly not required in order to
receive a diploma. Moreover, we may assume that the District is
correct in arguing that the informal pressure to attend an athletic event
is not as strong as a senior’s desire to attend her own graduation
ceremony. |
|
| There are some
students, however, such as cheerleaders, members of the band, and, of
course, the team members themselves, for whom seasonal commitments mandate
their attendance, sometimes for class credit. The District also minimizes
the importance to many students of attending and participating in
extracurricular activities as part of a complete educational experience.
As we noted in Lee, “[l]aw reaches past formalism.” 505 U.S.,
at 595. To assert that high school students do not feel immense social
pressure, or have a truly genuine desire, to be involved in the
extracurricular event that is American high school football is “formalistic
in the extreme.” Ibid. We stressed in Lee the obvious
observation that “adolescents are often susceptible to pressure from
their peers towards conformity, and that the influence is strongest in
matters of social convention.” Id., at 593. High school home
football games are traditional gatherings of a school community; they
bring together students and faculty as well as friends and family from
years present and past to root for a common cause. Undoubtedly, the games
are not important to some students, and they voluntarily choose not to
attend. For many others, however, the choice between whether to attend
these games or to risk facing a personally offensive religious ritual is
in no practical sense an easy one. The Constitution, moreover, demands
that the school may not force this difficult choice upon these students
for “[i]t is a tenet of the First
Amendment that the State cannot require one of its citizens to forfeit
his or her rights and benefits as the price of resisting conformance to
state-sponsored religious practice.” Id., at 596. |
Were the plaintiffs in this
case on one of these teams? Why does the Court feel compelled to prohibit
prayer if no one who was required to attend the football game was actually
"offended?"
All this "peer pressure" is nothing compared to the pressure
of this Court. The Court is both paternalistic and permissive, in that it
allows one spoiled brat atheist to ruin the whole party. Why not teach
these brats to just be respectful for a few moments while the rest of the
world acknowledges its Creator?
I must add one final observation: the Founders of
our Republic knew the fearsome potential of sectarian religious
belief to generate civil dissension and civil strife. And they
also knew that nothing, absolutely nothing, is so inclined to
foster among religious believers of various faiths a toleration -
no, an affection - for one another than voluntarily joining in
prayer together, to the God whom they all worship and seek.
Needless to say, no one should be compelled to do that, but it is
a shame to deprive our public culture of the opportunity, and
indeed the encouragement, for people to do it voluntarily. The
Baptist or Catholic who heard and joined in the simple and
inspiring prayers of Rabbi Gutterman on this official and
patriotic occasion was inoculated from religious bigotry and
prejudice in a manner that cannot be replicated. To deprive our
society of that important unifying mechanism in order to spare the
nonbeliever what seems to me the minimal inconvenience of
standing, or even sitting in respectful nonparticipation, is as
senseless in policy as it is unsupported in law.
-- Justice Scalia, dissenting in Lee
v. Weisman |
|
| Even if we regard every
high school student’s decision to attend a home football game as purely
voluntary, we are nevertheless persuaded that the delivery of a pregame
prayer has the improper effect of coercing those present to participate in
an act of religious worship. For “the government may no more use social
pressure to enforce orthodoxy than it may use more direct means.” Id.,
at 594. As in Lee, “[w]hat to most believers may seem nothing
more than a reasonable request that the nonbeliever respect their
religious practices, in a school context may appear to the nonbeliever or
dissenter to be an attempt to employ the machinery of the State to enforce
a religious orthodoxy.” Id., at 592. The constitutional command
will not permit the District “to exact religious conformity from a
student as the price” of joining her classmates at a varsity football
game.[22] |
To speak of this as "an
attempt to employ the machinery of the State to enforce a religious
orthodoxy" trivializes the genuine horrors of the past. Are today's
atheists really such wimps? When atheists came whining to the New York
Supreme Court about prayer in school, the NY high court wisely rejected
the issue:
To recognize "subtle pressures" as
compulsion under the [first] amendment is to stray far afield from
the oppressions the amendment was designed to prevent [note 172:
Jefferson's Notes on Virginia, supra, n. 93, refers to
"coercion" and innocent people "burnt, tortured,
fined and imprisoned" and his Act for Establishing Religious
Freedom enacted that "no man shall be compelled to frequent
or support any religious worship, place or ministry whatsoever,
nor shall be enforced, restrained, molested or burthened in his
body or goods, nor shall otherwise suffer on account of his
religious opinions or belief"; Madison's Memorial,
to "force and violence," "torrents of blood,"
"attempts to enforce by legal sanctions"; Roger
Williams' Bloudy Tenent, Of Persecution For Cause of
Conscience (1644) was directed against persecution and blood
spilt in the attempt to enforce uniformity of religion; Locke's A
Letter Concerning Toleration (1689) was concerned that
"no violence nor injury is to be offered" (Crowder ed.,
p. 30). Note also the reference in the quotation from Davis
v. Beason, supra, n. 122, to "oppressive measures
adopted, and the cruelties and punishments inflicted.")
Matter of Engel v. Vitale, 18 Misc. 2d 659, 695 (1959) |
But today, Secular Humanists are thrown into a tizzy when the President
or other government voice acknowledges that a Being other than a Secular
Humanist is God, and that we as a nation should acknowledge that Being.
And long after Christians have stopped torturing heretics, Humanists
complain about "coercion." |
| The Religion Clauses of
the First
Amendment prevent the government from making any law respecting the
establishment of religion or prohibiting the free exercise thereof. By no
means do these commands impose a prohibition on all religious activity in
our public schools. See, e.g., Lamb’s Chapel v. Center
Moriches Union Free School Dist., 508
U.S. 384, 395 (1993); Board of Ed. of Westside Community Schools
(Dist. 66) v. Mergens, 496
U.S. 226 (1990); Wallace v. Jaffree, 472
U.S. 38, 59 (1985). Indeed, the common purpose of the Religion Clauses
“is to secure religious liberty.” Engel v. Vitale, 370
U.S. 421, 430 (1962). Thus, nothing in the Constitution as interpreted
by this Court prohibits any public school student from voluntarily praying
at any time before, during, or after the schoolday. But the religious
liberty protected by the Constitution is abridged when the State
affirmatively sponsors the particular religious practice of prayer. |
This is so hypocritical.
If a Christian regularly got up into the speaker's booth of the Stadium
and began leading the crowd in prayer, the school would face lawsuits
until it disciplined that student. Everything else in this Court's opinion
indicates that if the school does not use its authority to
stop public prayer it violates the Establishment Clause. |
|
IV |
|
| Finally, the District
argues repeatedly that the Does have made a premature facial challenge to
the October policy that necessarily must fail. The District emphasizes,
quite correctly, that until a student actually delivers a solemnizing
message under the latest version of the policy, there can be no certainty
that any of the statements or invocations will be religious. Thus, it
concludes, the October policy necessarily survives a facial challenge. |
In other words, the school
district was sued even before the elections were held, and before the
first prayer was uttered.
The students may, under the district's policy, choose to have a wholly
secular pre-game message. |
| This argument, however,
assumes that we are concerned only with the serious constitutional injury
that occurs when a student is forced to participate in an act of religious
worship because she chooses to attend a school event. But the Constitution
also requires that we keep in mind “the myriad, subtle ways in which
Establishment Clause values can be eroded,” Lynch, 465 U.S., at
694 (O’Connor, J., concurring), and that we guard against other
different, yet equally important, constitutional injuries. One is the mere
passage by the District of a policy that has the purpose and perception of
government establishment of religion. Another is the implementation of a
governmental electoral process that subjects the issue of prayer to a
majoritarian vote. |
Justice Rehnquist notes in
his dissent,
| We do not learn until late in the Court’s opinion
that respondents in this case challenged the district’s
student-message program at football games before it had
been put into practice. As the Court explained in United
States v. Salerno, 481
U.S. 739, 745 (1987), the fact that a policy might “operate
unconstitutionally under some conceivable set of circumstances is
insufficient to render it wholly invalid.” See also Bowen
v. Kendrick, 487
U.S. 589, 612 (1988). |
|
| The District argues
that the facial challenge must fail because “Santa Fe’s Football
Policy cannot be invalidated on the basis of some ‘possibility or even
likelihood’ of an unconstitutional application.” Brief for Petitioner
17 (quoting Bowen v. Kendrick, 487
U.S. 589, 613 (1988)). Our Establishment Clause cases involving facial
challenges, however, have not focused solely on the possible applications
of the statute, but rather have considered whether the statute has an
unconstitutional purpose. Writing for the Court in Bowen, The Chief
Justice concluded that “[a]s in previous cases involving facial
challenges on Establishment Clause grounds, e.g., Edwards v.
Aguillard, [482
U.S. 578 (1987)]; Mueller v. Allen, 463
U.S. 388 (1983), we assess the constitutionality of an enactment by
reference to the three factors first articulated in Lemon v. Kurtzman,
403
U.S. 602, 612 (1971) … . which guides ‘[t]he general nature
of our inquiry in this area,’ Mueller v. Allen, supra, at
394.” 487 U.S., at 602. Under the Lemon standard, a court must
invalidate a statute if it lacks “a secular legislative purpose.” Lemon
v. Kurtzman, 403
U.S. 602, 612 (1971). It is therefore proper, as part of this facial
challenge, for us to examine the purpose of the October policy. |
|
| As discussed, supra,
at 14—15, 17, the text of the October policy alone reveals that it has
an unconstitutional purpose. The plain language of the policy clearly
spells out the extent of school involvement in both the election of the
speaker and the content of the message. Additionally, the text of the
October policy specifies only one, clearly preferred message–that of
Santa Fe’s traditional religious “invocation.”
Finally, the extremely selective access of the policy and other content
restrictions confirm that it is not a content-neutral regulation that
creates a limited public forum for the expression of student speech. Our
examination, however, need not stop at an analysis of the text of the
policy. |
One can excuse these Texans
for wanting to being their football games with an "invocation."
Their Presidents have been wont to do so. In Lyndon Johnson's Presidential
Papers we find this in Item 75:
|
Remarks in Stonewall, Texas, at a
Barbecue in Honor of Chancellor Erhard , December 29, 1963
[The President first offered the following invocation:]
Our Heavenly Father, we thank Thee for these
friends from across the waters. We thank Thee for these friends
and neighbors here at home. We ask Thee to bless this food,
forgive our sins, save us in Thy Kingdom, and give us a peaceful
world. Amen.
Public Papers of the Presidents, L. B. Johnson,
1963-1964, p.95 |
|
| This case comes to us
as the latest step in developing litigation brought as a challenge to
institutional practices that unquestionably violated the Establishment
Clause. One of those practices was the District’s long-established
tradition of sanctioning student-led prayer at varsity football games. The
narrow question before us is whether implementation of the October policy
insulates the continuation of such prayers from constitutional scrutiny.
It does not. Our inquiry into this question not only can, but must,
include an examination of the circumstances surrounding its enactment.
Whether a government activity violates the Establishment Clause is “in
large part a legal question to be answered on the basis of judicial
interpretation of social facts… . Every government practice must be
judged in its unique circumstances … .” Lynch, 465 U.S.,
at 693—694 (O’Connor, J., concurring). Our discussion in the
previous sections, supra, at 15—18, demonstrates that in this
case the District’s direct involvement with school prayer exceeds
constitutional limits. |
One of the plaintiffs in this
case who is so offended at "invocations" is a Mormon, who wasn't
around when L.B.J. began his "Remarks in Salt Lake City at the Mormon
Tabernacle," October 29, 1964:
| President Brown, thank you for that inspiring
invocation, President Tanner, my fellow Americans:
Public Papers of the Presidents, L. B. Johnson,
1963-1964, p.1513, Item 737 |
|
| The District,
nevertheless, asks us to pretend that we do not recognize what every
Santa Fe High School student understands clearly–that this policy
is about prayer. The District further asks us to accept what is obviously
untrue: that these messages are necessary to “solemnize” a football
game and that this single-student, year-long position is essential to the
protection of student speech. We refuse to turn a blind eye to the context
in which this policy arose, and that context quells any doubt that this
policy was implemented with the purpose of endorsing school prayer. |
|
| Therefore, the simple
enactment of this policy, with the purpose and perception of school
endorsement of student prayer, was a constitutional violation. We need not
wait for the inevitable to confirm and magnify the constitutional injury.
In Wallace, for example, we invalidated Alabama’s as yet
unimplemented and voluntary “moment of silence” statute based on our
conclusion that it was enacted “for the sole purpose of expressing the
State’s endorsement of prayer activities for one minute at the beginning
of each school day.” 472 U.S., at 60; see also Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508
U.S. 520, 532 (1993). Therefore, even if no Santa Fe High School
student were ever to offer a religious message, the October policy fails a
facial challenge because the attempt by the District to encourage prayer
is also at issue. Government efforts to endorse religion cannot evade
constitutional reproach based solely on the remote possibility that those
attempts may fail. |
This is true. The District
was trying to defend its actions using the warped analysis of the modern
Court, which demands that everything pass in review before the
religion of Secular Humanism. The correct argument of the District
should not have been "the student might choose not to pray," but
"it is our duty as an educational agency to
promote religion." |
| This policy likewise
does not survive a facial challenge because it impermissibly imposes upon
the student body a majoritarian election on the issue of prayer. Through
its election scheme, the District has established a governmental electoral
mechanism that turns the school into a forum for religious debate.
It further empowers the student body majority with the authority to
subject students of minority views to constitutionally improper
messages. The award of that power alone, regardless of the
students’ ultimate use of it, is not acceptable.[23]
Like the referendum in Board of Regents of Univ. of Wis. System v. Southworth,
529 U.S. ___ (2000), the election mechanism established by the District
undermines the essential protection of minority viewpoints. Such a system
encourages divisiveness along religious lines and threatens the imposition
of coercion upon those students not desiring to participate in a religious
exercise. Simply by establishing this school-related procedure, which
entrusts the inherently nongovernmental subject of religion to a
majoritarian vote, a constitutional violation has occurred.[24]
No further injury is required for the policy to fail a facial challenge. |
Previously the Court had encouraged "frank
and open discussion of moral, religious, and societal views and
beliefs." Here that debate is "unconstitutional."
The Court is here clearly declaring that all the prayers of the
Founding Fathers were "constitutionally improper." |
| To properly examine
this policy on its face, we “must be deemed aware of the history and
context of the community and forum,” Pinette, 515 U.S., at 780 (O’Connor,
J., concurring in part and concurring in judgment). Our examination of
those circumstances above leads to the conclusion that this policy does
not provide the District with the constitutional safe harbor it sought.
The policy is invalid on its face because it establishes an improper
majoritarian election on religion, and unquestionably has the purpose and
creates the perception of encouraging the delivery of prayer at a series
of important school events. |
|
| The judgment of the
Court of Appeals is, accordingly, affirmed. |
|
| It is so ordered. |
|
Notes
|
|
| 1. A
decision, the Fifth Circuit Court of Appeals noted, that many District
officials “apparently neither agreed with nor particularly respected.”
168 F.3d 806, 809, n. 1 (CA5 1999). About a month after the complaint was
filed, the District Court entered an order that provided, in part: “[A]ny
further attempt on the part of District or school administration,
officials, counsellors, teachers, employees or servants of the School
District, parents, students or anyone else, overtly or covertly to ferret
out the identities of the Plaintiffs in this cause, by means of bogus
petitions, questionnaires, individual interrogation, or downright ‘snooping’,
will cease immediately. ANYONE TAKING ANY ACTION ON SCHOOL PROPERTY,
DURING SCHOOL HOURS, OR WITH SCHOOL RESOURCES OR APPROVAL FOR PURPOSES OF
ATTEMPTING TO ELICIT THE NAMES OR IDENTITIES OF THE PLAINTIFFS IN THIS
CAUSE OF ACTION, BY OR ON BEHALF OF ANY OF THESE INDIVIDUALS, WILL FACE
THE HARSHEST POSSIBLE CONTEMPT SANCTIONS FROM THIS COURT, AND MAY
ADDITIONALLY FACE CRIMINAL LIABILITY. The Court wants these proceedings
addressed on their merits, and not on the basis of intimidation or
harassment of the participants on either side.” App. 34—35. |
|
| 2. At
the 1994 graduation ceremony the senior class president delivered this
invocation: “Please bow your heads. “Dear heavenly Father, thank you
for allowing us to gather here safely tonight. We thank you for the
wonderful year you have allowed us to spend together as students of
Santa Fe. We thank you for our teachers who have devoted many hours
to each of us. Thank you, Lord, for our parents and may each one receive
the special blessing. We pray also for a blessing and guidance as each
student moves forward in the future. Lord, bless this ceremony and give us
all a safe journey home. In Jesus’ name we pray.” Id., at 19. |
|
| 3. For
example, it prohibited school officials from endorsing or participating in
the baccalaureate ceremony sponsored by the Santa Fe Ministerial
Alliance, and ordered the District to establish policies to deal with “manifest
First
Amendment infractions of teachers, counsellors, or other District or
school officials or personnel, such as ridiculing, berating or holding up
for inappropriate scrutiny or examination the beliefs of any individual
students. Similarly, the School District will establish or clarify
existing procedures for excluding overt or covert sectarian and
proselytizing religious teaching, such as the use of blatantly
denominational religious terms in spelling lessons, denominational
religious songs and poems in English or choir classes, denominational
religious stories and parables in grammar lessons and the like, while at
the same time allowing for frank and open discussion of moral, religious,
and societal views and beliefs, which are non-denominational and
non-judgmental.” Id., at 34. |
So-called
"Christian" teachers who ridicule non-Christian kids in class
are idiots. Teachers should be encouraging
Christian students to bend over backwards with courtesy and charm to win
the non-Christian students.
"Sectarian" and "proselytizing" activities in local
schools, however, were not intended by the Framers of the Constitution to
be in the jurisdiction of federal courts.
By "frank and open discussion" of
religion, the Court means "in terms of the truth of the
religion of Secular Humanism." If a teacher engages in a
"frank and open discussion" of Christianity with a student, even
before or after school, and the teacher indicates that he/she is a
Christian and believes Christianity is true and evolution is false, that
teacher will be disciplined. |
| 4. The
student giving the invocation thanked the Lord for keeping the class safe
through 12 years of school and for gracing their lives with two special
people and closed: “Lord, we ask that You keep Your hand upon us during
this ceremony and to help us keep You in our hearts through the rest of
our lives. In God’s name we pray. Amen.” Id., at 53. The
student benediction was similar in content and closed: “Lord, we ask for
Your protection as we depart to our next destination and watch over us as
we go our separate ways. Grant each of us a safe trip and keep us secure
throughout the night. In Your name we pray. Amen.” Id., at 54. |
Compare
the Proclamation of John Adams. |
| 5.
Despite these changes, the school did not conduct another election,
under the October policy, to supersede the results of the August policy
election. |
|
6. It
provides:
 “STUDENT
ACTIVITIES: “PRE-GAME CEREMONIES AT FOOTBALL
GAMES
“The
board has chosen to permit students to deliver a brief invocation and/or
message to be delivered during the pre-game ceremonies of home varsity
football games to solemnize the event, to promote good sportsmanship and
student safety, and to establish the appropriate environment for the
competition.
“Upon
advice and direction of the high school principal, each spring, the high
school student council shall conduct an election, by the high school
student body, by secret ballot, to determine whether such a statement or
invocation will be a part of the pre-game ceremonies and if so, shall
elect a student, from a list of student volunteers, to deliver the
statement or invocation. The student volunteer who is selected by his or
her classmates may decide what message and/or invocation to deliver,
consistent with the goals and purposes of this policy.
“If
the District is enjoined by a court order from the enforcement of this
policy, then and only then will the following policy automatically become
the applicable policy of the school district. “The board has chosen to
permit students to deliver a brief invocation and/or message to be
delivered during the pre-game ceremonies of home varsity football games to
solemnize the event, to promote good sportsmanship and student safety, and
to establish the appropriate environment for the competition.
“Upon
advice and direction of the high school principal, each spring, the high
school student council shall conduct an election, by the high school
student body, by secret ballot, to determine whether such a message or
invocation will be a part of the pre-game ceremonies and if so, shall
elect a student, from a list of student volunteers, to deliver the
statement or invocation. The student volunteer who is selected by his or
her classmates may decide what statement or invocation to deliver,
consistent with the goals and purposes of this policy. Any message and/or
invocation delivered by a student must be nonsectarian and
nonproselytizing.” Id., at 104—105. |
|
| 7. “The
graduation prayers at issue in the instant case, in contrast, are infused
with explicit references to Jesus Christ and otherwise
appeal to distinctively Christian beliefs. The Court accordingly finds
that use of these prayers during graduation ceremonies, considered in
light of the overall manner in which they were delivered, violated the
Establishment Clause.” App. to Pet. for Cert. E8. |
I've heard secularists allege
that American couldn't be a
Christian nation since the Founding Fathers didn't sound like
fundamentalists, always shouting out "CHEEZUS!" The school
district would have been able to fool these infidels by using code-words like
John Adams did when he asked the nation to:
- call to mind our numerous offenses against the Most High God,
confess them before Him with the sincerest penitence,
- implore His pardoning mercy, through the Great Mediator and
Redeemer, for our past transgressions,
- and that through the grace of His Holy Spirit we
may be disposed and enabled to yield a more suitable obedience to His
righteous requisitions in time to come;
|
| 8. Id.,
at E8—E9. |
|
| 9.
Because the dissent overlooks this case, it incorrectly assumes that
a “prayer-only policy” at football games was permissible in the Fifth
Circuit. See post, at 6—7. |
|
10. “There
are in fact several secular reasons for allowing a brief, serious message
before football games–some of which [the District] has listed in its
policy. At sporting events, messages and/or invocations can promote, among
other things, honest and fair play, clean competition, individual
challenge to be one’s best, importance of team work, and many more goals
that the majority could conceive would it only pause to do so.
“Having again relinquished all editorial
control, [the District] has created a limited public forum for the
students to give brief statements or prayers concerning the value of those
goals and the methods for achieving them.” 168 F.3d, at 835. |
|
| 11. “The
majority fails to realize that what is at issue in this facial
challenge to this school policy is the neutral accommodation of
non-coerced, private, religious speech, which allows students, selected by
students, to express their personal viewpoints. The state is not
involved. The school board has neither scripted, supervised, endorsed,
suggested, nor edited these personal viewpoints. Yet the majority
imposes a judicial curse upon sectarian religious speech.” Id., at
836. |
|
| 12.
See, e.g., Brief for Petitioner 44—48, citing Rosenberger,
515 U.S., 819 (limited public forum); Widmar v. Vincent, 454
U.S. 263 (1981) (limited public forum); Capitol Square Review and
Advisory Bd. v. Pinette, 515
U.S. 753 (1995) (traditional public forum); Lamb’s Chapel v. Center
Moriches Union Free School Dist., 508
U.S. 384 (1993) (limited public forum). Although the District relies
on these public forum cases, it does not actually argue that the pregame
ceremony constitutes such a forum. |
|
| 13. A
conclusion that the District had created a public forum would help shed
light on whether the resulting speech is public or private, but we also
note that we have never held the mere creation of a public forum shields
the government entity from scrutiny under the Estalishment Clause. See, e.g.,
Pinette, 515 U.S., at 772 (O’Connor, J., concurring in part and
concurring in judgment) (“I see no necessity to carve out… an
exception to the endorsement test for the public forum context”). |
|
| 14.
The school’s internal mail system in Perry was open to
various private organizations such as “[l]ocal parochial schools, church
groups, YMCA’s, and Cub Scout units.” 460 U.S., at 39,
n. 2. |
|
15. If
instead of a choice between an invocation and no pregame message, the
first election determined whether a political speech should be made, and
the second election determined whether the speaker should be a Democrat or
a Republican, it would be rather clear that the public address system was
being used to deliver a partisan message reflecting the viewpoint of the
majority rather than a random statement by a private individual.
The fact that the District’s policy provides for
the election of the speaker only after the majority has voted on her
message identifies an obvious distinction between this case and the
typical election of a “student body president, or even a newly elected
prom king or queen.” Post, at 5. |
Is the Court saying it would be unconstitutional for school district to
permit the students to hold an election to decide whether they wanted to
make a pre-game political announcement,
then hold a subsequent election to elect a student speaker to make the
political announcement? Why would this be unconstitutional?
What has happened to free speech? |
| 16.
Brief for Petitioner 19 (quoting Board of Ed. of Westside
Community Schools (Dist. 66) v. Mergens, 496
U.S. 226, 248 (1990) (plurality opinion)). |
|
| 17.
Tr. of Oral Arg. 7. |
|
| 18.
The Chief Justice’s hypothetical of the student body president
asked by the school to introduce a guest speaker with a biography of her
accomplishments, see post, at 9 (dissenting opinion), obviously
would pose no problems under the Establishment Clause. |
|
| 19.
See, e.g., Webster’s Third New International Dictionary
1190 (1993) (defining “invocation” as “a prayer of entreaty that is
usu[ally] a call for the divine presence and is offered at the beginning
of a meeting or service of worship”). |
|
| 20.
See supra, at 4—5, and n. 4; |
|
| 21.
Even if the plain language of the October policy were facially
neutral, “the Establishment Clause forbids a State to hide behind the
application of formally neutral criteria and remain studiously oblivious
to the effects of its actions.” Capitol Square Review and Advisory
Bd. v. Pinette, 515 U.S., at 777 (O’Connor, J., concurring in
part and concurring in judgment); see also Church of Lukumi Babalu Aye,
Inc. v. Hialeah, 508
U.S. 520, 534—535 (1993) (making the same point in the Free Exercise
context). |
|
| 22. “We
think the Government’s position that this interest suffices to force
students to choose between compliance or forfeiture demonstrates
fundamental inconsistency in its argumentation. It fails to acknowledge
that what for many of Deborah’s classmates and their parents was a
spiritual imperative was for Daniel and Deborah Weisman religious
conformance compelled by the State. While in some societies the wishes of
the majority might prevail, the Establishment Clause of the First
Amendment is addressed to this contingency and rejects the balance
urged upon us. The Constitution forbids the State to exact religious
conformity from a student as the price of attending her own high school
graduation. This is the calculus the Constitution commands.” Lee, 505
U.S., at 595—596. |
|
| 23.
The Chief Justice accuses us of “essentially invalidat[ing] all
student elections,” see post, at 5. This is obvious hyperbole. We
have concluded that the resulting religious message under this policy
would be attributable to the school, not just the student, see supra, at
9—18. For this reason, we now hold only that the District’s
decision to allow the student majority to control whether students of
minority views are subjected to a school-sponsored prayer violates the
Establishment Clause. |
|
| 24.
The Chief Justice contends that we have “misconstrue[d] the nature
… [of] the policy as being an election on ‘prayer’ and ‘religion,’ ”
see post, at 3—4. We therefore reiterate that the District has
stipulated to the facts that the most recent election was held “to
determine whether a student would deliver prayer at varsity
football games,” that the “students chose to allow a student to say a prayer
at football games,” and that a second election was then held “to
determine which student would deliver the prayer.” App. 65—66
(emphases added). Furthermore, the policy was titled “Prayer at
Football Games.” Id., at 99 (emphasis added). Although the
District has since eliminated the word “prayer” from the policy, it
apparently viewed that change as sufficiently minor as to make holding a
new election unnecessary. |
|