March 10, 1999

Court tackles Texas football game prayers
___By Mark Wingfield
___Managing Editor
___GALVESTON--Certain forms of student-led public prayer are acceptable at high school graduation ceremonies, but none are acceptable at high school football games, the U.S. 5th Circuit Court of Appeals ruled on a 2-1 split March 1.
___The case, which stemmed from the complaints of two parents against the Santa Fe Independent School District in Galveston, could have far-reaching implications for high school football games all across Texas. Many Texas high

PRAYER before high school football games like this is unacceptable, according to the U.S. 5th Circuit Court of Appeals.

schools still routinely broadcast invocations over the public ad-dress system at football games.
___The ruling of the 5th Circuit Court, based in New Orleans, impacts only Texas, Louisiana and Mississippi. However, it is consistent with an earlier ruling by the 11th Circuit Court of Appeals in Georgia.
___The U.S. Supreme Court never has ruled on the constitutionality of school-endorsed prayer at high school football games, although the high court has ruled on the commencement prayer question.
___In this particular case, the Santa Fe School District allowed students to read Christian prayers from the stage at graduation ceremonies and over the public address system at football games. School officials retained control over the proceedings during these prayer times and actually screened the content of the graduation prayers in advance.
___In 1994, the district adopted a policy on graduation prayers in an apparent attempt to comply with the 1992 Supreme Court ruling in Lee vs. Weis-mann. In that case, the court ruled that school officials may not invite clergy to deliver school-sponsored prayers at commencement exercises. The 5th Circuit Court, however, ruled the same year in Jones vs. Clear Creek Independent School District that graduation prayers do not violate the First Amendment's Establishment Clause so long as they are "student-selected, student-given, non-sectarian, non-proselytizing."
___The Santa Fe School District's 1994 policy reflected that language, although it later was amended to deviate from the strict guidelines set forth in the Clear Creek ruling. No policy was adopted on prayers at football games until 1995. At that time, a football prayer policy was adopted that was similar to the graduation prayer policy.
___This policy allowed 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."
___The March 1 ruling by the 5th Circuit Court of Appeals declared that policy unconstitutional. "Extending a Clear Creek prayer policy to cover messages delivered before high school football games violates the Constitution, even if such a policy includes the non-sectarian, non-proselytizing restrictions," the court majority wrote.
___The appeals court also found the Santa Fe District's commencement prayer policy not strict enough to pass constitutional muster. However, the court reaffirmed its earlier ruling that commencement prayers are acceptable if they meet the guidelines of being student-initiated, student-led, non-sectarian and non-proselytizing.
___The two Circuit Court judges writing in the majority, Jacques Weiner and Carl Stewart, cited a significant difference between commencement ceremonies and football games, acknowledging a legitimate need to "solemnize" commencements that does not exist at football games.
___Football games, they wrote, are "hardly the type of annual event that can be appropriately solemnized with prayer."
___In a lengthy dissenting opinion, Judge Grady Jolly charged that the court for the first time "exerts control over the content of its citizens' prayers" and "transgresses the most fundamental First Amendment rights."
___By demanding non-sectarian and non-proselytizing prayers, the court imposes undue restrictions on religious speech in a public forum, Jolly said. "When the government restricts sectarian and proselytizing speech, while embracing ecumenical religious speech, the government has engaged in illegitimate viewpoint discrimination."
___Kelly Shackleford, general counsel for the Plano-based Liberty Legal Institute, echoed Judge Jolly's dissenting opinion in the case.
___"This is one of the most disturbing things we've ever read," Shackleford said. "The government has no right to monitor the content of children's prayers. But for the first time, the court now is mandating the monitoring of prayers, telling which ones are approved and which are not.
___"There have been cases saying government cannot prescribe prayer, but there never have been cases saying government can monitor private citizens' prayers. This should send chills down people's spines."
___The court's ruling violates a host of constitutional freedoms, Shacklford addedññ"free speech, the establishment clause, equal protection, the free exercise clause, you name it."
___Other church-state experts were less alarmed by the ruling.
___The 5th Circuit Court ruling will draw much comment in Texas, predicted Phil Strickland, director of the Baptist General Convention of Texas Christian Life Commission.
___"Many Texans hold church to be sacred and football to be really sacred," Strickland noted, only partly in jest.
___While many Texas Baptists will find the court's ruling distasteful, the matter isn't completely settled yet, he said. "This case almost certainly will be appealed, and the outcome will clearly be of major significance to those interested in church-state separation."
___Strickland also admonished Baptists who object to government-sponsored prayer at school events to be consistent in their thinking. "The fact is, it's hard for Baptists who object to government-sponsored prayer to support government sponsored prayer in football games."
___Another Baptist church-state expert said he believes the 5th Circuit Court ruled correctly on the football prayer issue. State-sanctioned prayers at school events should be disapproved by devout Christians, said Brent Walker, general counsel for the Baptist Joint Committee on Public Affairs in Washington.
___"I'm not saying this because I'm anti-prayer," he added. "It's precisely because I have such a high view of prayer that I think the state ought not be intruding in these matters."
___Students, parents, ministers and school officials have an easy way to avoid Constitutional problems with prayer at both football games and commencement ceremonies, Walker suggested.
___"The way to avoid hundreds of thousands of dollars in legal bills Ö is to do this: Have your graduation ceremony without a formal prayer from the podium. Have a moment or minute of silence. Then the next day have a voluntarily attended baccalaureate service sponsored by a church or group of churches. Have a full-fledged worship service without any intrusion.
___"This is the best of all worlds and what I encourage school districts to do," Walker said.
___Concerning football games, Walker emphasized that the court ruling only applies to formal prayers that engage everyone in attendance. "It is perfectly permissible for students or players on their own to get a pre-game huddle and pray on their own."

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