WASHINGTON, June 19 (JTA) While the U.S. Supreme Court ruled this week that students cannot lead prayers at high school football games, the issue of prayer at public school events is far from settled.
In a 6-3 decision, the court ruled Monday that student-led and student-initiated prayers violate the constitutional separation of church and state.
But the court refused to use the case to decide whether prayers at graduation ceremonies are permissible.
The ruling did, however, hint at how the justices may view upcoming cases related to religion in the schools. It could also lead to a renewed push for a school prayer amendment and become a factor in the 2000 presidential campaign. Republican presidential candidate George W. Bush, the Texas governor, filed a brief in the case supporting student-led prayer.
Most Jewish groups, which have long advocated for the separation of church and state, lauded the decision on football games and said they hope the court will rule the same way on graduation ceremonies.
“I don’t see how graduation prayer survives this decision,” said Marc Stern, co-director of the American Jewish Congress’ legal department, which filed a friend of the court brief in the case.
In 1992, the Supreme Court barred clergy-led prayers at public school graduation ceremonies. The ruling was viewed as a strong reaffirmation of the court’s 1962 landmark decision banning organized school prayer.
But a year later, the justices refused to review a federal appeals court ruling that allowed student-led prayers at graduation ceremonies. That ruling conflicts with another federal appeals court’s decision barring student-led graduation prayers.
In this case, Justice John Paul Stevens, writing for the majority, said that the Texas school district’s policy of allowing students to lead prayers at football games “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.”
Michael Lieberman, counsel for the Anti-Defamation League, which filed a friend of the court brief in the case, noted the court’s concern that minority religious views could be “effectively silenced” by such a policy.
Leonard Cole, national chair for the Jewish Council for Public Affairs, agreed. “Whatever the intention of such religious exercises, the net effect is to make children of minority faiths or no religious faith at all feel marginalized,” Cole said in a statement.
The Orthodox Union is backing the court’s decision, but believes there are certain circumstances where student-led prayer in school should be constitutionally protected, said the director of the group’s Institute for Public Affairs, Nathan Diament.
Diament said he is worried that if the case is interpreted too broadly, people will wrongly understand that schools ought to be “religion-free zones.” The O.U. did not file a brief in the case.
The Supreme Court was set to decide this week whether it will hear a case on prayer at graduation ceremonies during next year’s term.
Monday’s decision may have implications for school vouchers, which provides government funds for students to attend parochial or private schools.
The court rejected the school’s use of a student to lead prayer as a “circuit breaker,” or a way to show that the school was not directly endorsing prayer. Use of a student speaker, does not turn public speech into private speech, the court said.
That same approach is often used in voucher cases, where the parent is considered the “circuit breaker” and the argument is made that the government is not actually giving money directly to private schools, according to Jeffrey Sinensky, director for national affairs and legal counsel at the American Jewish Committee.
Justices Anthony Kennedy and Sandra Day O’Connor, whose votes are often the deciding ones in close cases, went along with the majority opinion, which gave the decision an added strong signal.
During oral arguments in March, Kennedy had voiced concern that schools could become “forums for religious debates,” while O’Connor said she was concerned that the policy could be extended to allow prayer in the classroom.
In the case decided Monday, the Santa Fe, Texas, school district policy allowed a student representative to read prayers over the school’s public address system at football games. The school district maintained this policy does not violate the separation between church and state because the message or invocation can be nonreligious, and the message is decided by the student and not the school.
The school claimed that prayer served secular purposes as well because it sanctified sporting events and promoted good sportsmanship and student safety.
Chief Justice William Rehnquist’s dissent took that argument even further.
Rehnquist, who was joined by Justices Antonin Scalia and Clarence Thomas, charged that the tone of the court’s opinion “bristles with hostility to all things religious in public life.”
The parents and students who object to the school policy argued that the policy imposes religious practices on the student body. Any speech that is part of an official school event, even if initiated and led by a student, is under school control and therefore the government is really making the choice of whether to include prayer, they said.
Congress may decide to issue a resolution that would promote student-led prayer at football games, which would have no legislative impact legislatively but would send a political message.
There may also be a renewed push on a constitutional amendment in favor of school prayer, said David Saperstein, director of the Religious Action Center of Reform Judaism.
The amendment, sponsored by Rep. Ernest Istook (R-Okla.), would allow any kind of prayer in government-sponsored settings, government funding for religious activities and religious symbols on government property.
Saperstein, who also teaches church-state law at the Georgetown University Law Center, said the sweeping legislation would be a “disaster” for religious freedom in America and for the American Jewish community.