April 3, 2000
Supreme Court hears Texas
case on high school game prayers
___By Kenny Byrd
___Baptist Joint Committee
___WASHINGTON--Supreme Court justices struggled March 29 with whether students should be allowed to lead stadium prayers at public high school football games.
___"There is not a religious speech exception to the First Amendment," claimed Jay Sekulow, chief counsel to the American Center for Law and Justice, who represented the Santa Fe Independent School District, located in South Texas.
___The district's policy is "a neutral policy that simply allows student-led, student-initiated prayer," he added.
___Arguing for four anonymous students and their parents who challenged the Santa Fe policy was Anthony Griffin of Galveston, also representing the American Civil Liberties Union.
___"I can pray before the football game. I can pray after," Griffin said. "I don't need the government's forum. I don't have an absolute right to take over the mike."
___The policy, adopted in 1995, allows students selected by their colleagues to deliver invocations and benedictions at graduation ceremonies and a "brief invocation and/or message" before home varsity football games.
___The policy contains a "fallback" position requiring such prayers to be "non-sectarian" and "non-proselytizing" if a court requires them to be.
___The 5th U.S. Circuit Court of Appeals agreed graduation prayers are permissible only if they are non-sectarian and non-proselytizing. But the court said the policy cannot be extended to football games, even if the prayers involved are non-sectarian and non-proselytizing.
___The Supreme Court limited its review to football prayers.
___While Chief Justice William Rehnquist and Associate Justice Antonin Scalia posed questions that appeared sympathetic to the school district's policy, most justices sounded skeptical.
___Associate Justice David Souter said if the selected student decides to pray, the "school district is forcing school children to sit there and participate. ... That's as far as we have to go to decide this case."
___Rehnquist claimed attending football games is not a requirement. But Griffin affirmed players, band members and cheerleaders are required to attend.
___Associate Justice Anthony Kennedy said electing a student to give a message will involve some kind of campaign. Students will end up having an election over whether to pray or not and who best can lead it, he said. "This is the kind of thing I think the Establishment Clause wants to keep out of schools."
___Associate Justice Steven Breyer said the voting procedure is "more likely" to leave out minority students.
___The Baptist Joint Committee filed a friend-of-the-court brief opposing the district's policy, noted BJC General Counsel Melissa Rogers.
___Joining the BJC brief was the J.M. Dawson Institute of Church-State Studies at Baylor University and the General Conference of Seventh-day Adventists. Drafted by Derek Davis, director of the Dawson Institute and BJC special counsel, it argues the Santa Fe district sends a "mixed message."
___"On the one hand, its policy stands as an endorsement of prayer--a quintessential religious act," the brief states. "But on the other hand, the school district's policy denigrates and trivializes the act of prayer by portraying an act of religious devotion as a quasi-secular ceremonial practice."
___The Ethics and Religious Liberty Commission of the Southern Baptist Convention did not file a brief on either side of the dispute.
___Richard Land, executive director of the ERLC, expressed concern for minorities but added, "I hope and pray that the court will affirm the Santa Fe practice, understanding that the minority does not have a right to silence the majority either."
___Texas Attorney General John Cornyn said he was "guardedly optimistic" the court will support the school district's policy.
___"This message that's given by the student is totally up to the student," he said. "Unless government is going to be required to be officially hostile to religious expressions, this policy has to be constitutional."
___The high court will issue a ruling before the end of its session in June.
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