WASHINGTON, Nov. 15 (JTA) — The Supreme Court’s decision to review the issue of student-led prayers at football games could help clear up conflicting rulings on prayer at school-related events, legal experts said.
The justices agreed to review an appeals court ruling that said the Santa Fe Independent School District in Galveston, Texas, violated the constitutional separation of church and state when it allowed student-led prayers at high school football games.
Marc Stern, co-director of the American Jewish Congress’ legal department, said that although the justices will only address whether students can lead prayers at football games, their decision is “likely to have a fairly significant impact” because it could help resolve conflicting rulings on student-led prayers at graduation ceremonies.
In 1992, the Supreme Court barred clergy-led prayers at public school graduation ceremonies. That decision — the court’s last major school-prayer ruling — was seen as following from the court’s 1962 decision banning organized, officially sponsored prayers from public schools.
But in 1993, the justices refused to review a federal appeals court ruling in a Texas case that allowed student-led prayers at graduation ceremonies. That ruling, which covers Louisiana and Mississippi as well, conflicts with another federal appeals court’s decision barring student-led graduation prayers in nine Western states.
Stern said that if the court allows the student-led prayers at football games it could signal their acceptance of similar prayers at graduation ceremonies or vice versa.
“The question that has been bedeviling the courts” is whether rights surrounding freedom of speech apply when the speaker has a captive audience, Stern said.
Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, noted that the Galveston school district’s decision to allow student-led prayer at football games was based on the ruling in the Texas case allowing similar prayer at graduation ceremonies.
The issue is where the free expression of religion and free speech rights intersect, Diament said.
Nathan Lewin, a Washington attorney who has argued numerous cases before the Supreme Court, predicted that the court could vote 5-4 to allow student-led, sectarian prayers at football games.
Lewin said in the 1992 case barring clergy-led prayer at graduation ceremonies, Justice Anthony Kennedy was the “swing vote” in the 5-4 decision, arguing that graduation ceremonies are “coercive.” Lewin does not think the court will see football games in a similar light because the decision to go is voluntary.
Elliot Mincberg, legal director for the People for the American Way Foundation, which advocates church-state separation, said, “People who attend football games are a captive audience for what is presented on the public address system” and therefore their “choice about whether to participate in a prayer, or the type of prayer they may wish to participate in, is taken away when an invocation is broadcast to the entire audience.”
However, the school district’s lawyers said in their appeal that the Constitution’s treatment of religion is “better honored through the neutral accommodation of student viewpoints, whether they be sectarian, ecumenical or religion-free, rather than through government censorship of the content of student prayers.”
The court will hear an appeal filed by the Santa Fe Independent School District, which is backed by Republican presidential candidate George W. Bush and eight other states.
The school district’s policy allowing student-led prayers at football games and graduation ceremonies was challenged in 1995 by four students and their parents.
A federal judge ruled that student-led prayers were permissible at games and graduation ceremonies as long as the students were told to keep their messages and prayers “nonsectarian and nonproselytizing.”
When school officials and students challenged that ruling, a three-judge appeals panel rules that even nonsectarian and nonproselytizing student-led prayers at high school football games were not appropriate.
A full appeals court voted 9-7 in April against reviewing the panel’s decision.
The Supreme Court will hear oral arguments in the case before the end of April, with a decision due by the end of June.