God and Man in Texas

One wonders if the irony struck the Supreme Court Justices on Monday. They strode into the courtroom to the cry: “God save the United States and this honorable Court,” sat beneath Moses, who is carved in stone above their bench, looked out to a courtroom whose doors are etched with tablets representing the Ten Commandments, and proclaimed that the Constitution prohibits a student from offering a prayer at a high school football game.

The case arose far from the Supreme Court’s ivory pillars in the State of Texas, where God and football stand as the foundation for many a community. The Santa Fe School District had allowed student led prayers at football games until this lawsuit was brought by the ACLU, which challenged the prayers as violating the Constitution’s prohibition of the establishment of state religion.

In response to the lawsuit, the school implemented a new policy, in which the students would vote on whether to have an invocation before the games, and would choose someone to perform the duty for the year. The invocation’s stated purpose was to solemnize the event, promote good sportsmanship and safety, and establish the appropriate environment for competition. Furthermore, the board gave explicit instructions that any message was not to be sectarian or proselytizing. But these changes weren’t enough for the Supreme Court, which scoffed at the board’s policy as a sham, finding that “a religious message is the most obvious method of solemnizing an event.”

The Court’s decision is worth criticizing on several counts. First, in jumping to the conclusion that the policy is a sham, the Court ignored the deference ordinarily due state governmental bodies and basically accused the school of trying to sneak a prayer in through the back door. As such, it also assumed that the student’s speech would necessarily be a prayer. Of course, a student could offer words other than a prayer to add solemnity to the occasion. For example, a student could lead the Pledge of Allegiance (oops, “under God”), or the National Anthem (that is, if the last verse’s “In God is our trust” isn’t too religious), or if all else fails, the student could say “God save the United States and this honorable school”—surely the Court couldn’t object to that.

Even if the Court is correct in its assumption and the student who had been elected by her peers chose to offer a prayer, does that voluntary act necessarily violate the Constitution? Beginning as it does with the belief that the school board is endorsing prayer through a scam, the Court had little trouble finding that the student’s speech would violate the Constitution because people may believe the student’s statement to be those of the school and feel coerced by it. Once again, the Court made two rather large leaps. First, because the pre-game invocation would be carried over the school’s loudspeaker, the Court transformed private speech, which is protected by the First Amendment’s guarantees of Free Speech and Free Exercise of religion, into government speech, which does not carry those protections.
Using this escapable logic, the speeches of homecoming queens, the post-game interview of football players, and the music of Britney Spears, all of which may be broadcast over the loudspeaker, become “government speech”—a chilling thought indeed. Second, the Court stated that students might be coerced by the invocations even though they attend voluntarily, essentially because peer pressure makes football involuntary. This statement rings hollow from a court that just 5 years ago had no problem imposing mandatory drug testing and what it called “intrusions on ordinary rights and privileges, including privacy” on student athletes in part because the students chose voluntarily to participate in athletics. Here the students look just as voluntary, the speech by a student does not appear to be a significant (if any) intrusion, but neither of those facts seems to matter.

The more disturbing aspect of this decision is its potential to be misinterpreted. The ruling is fairly narrow, resting primarily on the Court’s belief that the school district really was trying to perpetrate a sham and sneak a school-sanctioned prayer in the back door. But in the aftermath, groups like the National School Boards Association have stated that they are going to advise their members not to allow student led prayers at graduations—a topic that the Court did not address—or at other school functions. You can almost see the overreach now: a student stands up to deliver a valedictory address, begins a prayer, and has the microphone shut off. In spite of the problems with the Texas decision, the Court did not mean to so infringe on the religious speech of students, but rather intended to curtail what it perceived to be the religious speech of the government acting surreptitiously.
Far from the interpretation offered by the constitutional Chicken Littles, if a school district goes too far in prohibiting students from offering religious speech of their own choosing, they would be unconstitutionally trampling on the student’s right to free speech. Thus, the only thing we are guaranteed by this decision is more lawsuits in the future.

This decision is just another chapter in the Court’s already muddled interpretation of the Constitution’s requirement against establishment of religion. The best way to clear up this morass is for the Court to return to the Founders’ understanding of the Establishment Clause, an interpretation which does not require the government to choose irreligion over nonsectarian religion, and which thereby would alleviate the Court’s self-imposed need to second-guess school boards to make sure non-sectarian religion isn’t allowed anywhere near our schools. Until the Court takes this less suspicious and less hostile view toward religion in the public square, Texas football doesn’t have a prayer.

Robert Alt is an Adjunct Fellow at the Ashbrook Center for Public Affairs at Ashland University and the Deputy Senate Liaison at the Heritage Foundation in Washington, D.C.

Robert Alt is an Adjunct Fellow at the Ashbrook Center for Public Affairs at Ashland University and the Deputy Senate Liaison at the Heritage Foundation in Washington, D.C.