Justices revisit school prayer

Students' invocation in Texas due scrutiny

November 16, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- After resisting school prayer cases for years, the Supreme Court returned to that subject yesterday, agreeing to rule on the constitutionality of student-led prayers at football games.

A decision, due by summer in a case from Santa Fe, Texas, will be the first the court has issued on prayers that students choose to recite at school events.

Though the court said it will examine only prayers at high school sports contests, the justices will have to clarify whether it makes a constitutional difference if students, rather than school officials, plan the prayers -- an issue that could affect whether students can pray at other school events, such as graduation.

All of the court's rulings on prayers at public schools forbid prayer when school officials have a role in arranging it. Since 1962, the justices have barred such prayers, aloud or silent, in a public school setting as a violation of separation of church and state.

In 1992, when the court last ruled on the issue, it voted 5-4 to bar prayers at graduation ceremonies where school officials had made the decision to invite clergy to lead the prayers.

The decision raised the question of whether the court would also deny students the right to opt to say prayers at school events. That issue lingers, because the court has declined three times since 1992 to hear cases that could have answered it.

The court appeared to try yesterday to show that it did not want to issue a broad ruling. It confined the question that it will answer to group prayer at football games, a long-standing tradition at many Texas high schools. Along the way, however, the justices may well give constitutional guidance about prayers in other school settings.

Texas Gov. George W. Bush, the Republican presidential front-runner, added his name to a legal brief by the state supporting the appeal by the Santa Fe school board. The appeal sought a review by the court not only of football game prayers but also of prayers at graduation exercises.

The court appeared to decline, as it has previously, to review the issue of graduation prayers as a separate issue. As a result, the justices seem to have left intact a federal appeals court ruling that students may choose to pray at graduation ceremonies if they do not recite a prayer identified with a particular faith or deity.

Though allowing some graduation-day prayers, the appeals court barred all prayers at sporting events. Despite that ruling, a student chosen by other students to lead prayers, 17-year-old Marian Ward, has done so at games this fall. School authorities have not tried to stop her because a federal judge has given her temporary permission to lead pre-game prayers.

Jay Alan Sekulow, chief counsel for the American Center for Law and Justice, a conservative advocacy group that supports school prayer, suggested that the court will try to limit the scope of its ruling to football-game prayers.

But, Sekulow said, the case "could have broader implications. This is putting the issue of student-led, student-initiated prayer directly before the court. I don't see how they can ignore that distinction."

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, which opposes school prayer, said he believed that the court had "set the stage for a major church-state showdown."

Lynn added: "Unless the Supreme Court thinks football is a sacrament, it should find these school-sponsored prayers unconstitutional."

Justice Anthony M. Kennedy, the author of the 5-4 decision in 1992 against graduation prayer arranged by school officials, appears likely to hold the key vote on prayer at sporting events. If he voted to uphold it, Kennedy probably would have to find that prayers at games do not involve coercion of students who do not want to pray; the need to avoid coercion was the key to his graduation prayer ruling.

But if he voted to strike down prayers at football games, Kennedy probably would have to conclude that it makes no difference that students are the ones planning and praying. Such a ruling would also threaten graduation prayers initiated by students.

A hearing on the case will be held in February or March, with a ruling by summer.

In another case with a religious element, the court voted yesterday to leave intact a federal appeals court ruling that it amounts to religious coercion for a judge to order a drunken driver to go to Alcoholics Anonymous meetings as an alternative to jail.

The lower court said that because the AA program has "a substantial religious component," a judge would violate the doctrine of separating government and religion if he compelled attendance at its meetings, which seek to help alcoholics recover.

The court also declined to review a Massachusetts state court ruling that allowed a lesbian to have visitation rights with her former partner's son. After the couple broke up, the state court ruled that both women had acted as parents to the boy and thus both were entitled to a continuing role in his life. The women, who were living in Maryland when the boy was born, were not identified in court papers.

And the court agreed to rule later on the constitutionality of applying the federal law against arson to the torching of a single residence that is not used in a ny business or commercial activity.

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