Justices seem skeptical of student-led prayers

Supreme Court hears Texas case involving speech at school events

March 30, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Returning to the school prayer furor after an eight-year layoff, the Supreme Court sent hints yesterday that it is leaning toward strictly limiting religious recitations that students choose to make at school events.

Most of the justices who took part in the spirited hearing seemed troubled about a policy that turns over to students the choice of whether to pray, especially when the result is that prayers or other inspirational messages favor one religion over others.

The new case, from the small Texas town of Santa Fe, began as a test of the constitutionality of student-led prayers at high school football games.

But the hearing ranged far beyond that specific setting, with the court exploring in depth what it would mean to have student-led and student-composed prayers in public schools, an issue the court has never faced.

Campaign issue

The court is expected to decide the Santa Fe case by early summer, probably projecting the prayer issue into the presidential campaign. Gov. George W. Bush of Texas, the presumptive Republican presidential nominee, is directly involved as a party in the case, supporting student-led prayer.

One of the justices most concerned yesterday about turning prayer policy over to students was Justice Anthony M. Kennedy. He wrote the court's most recent school prayer ruling, a 1992 decision striking down graduation-day prayers that school officials arrange.

That decision has led to a wave of experiments around the country that let students choose what to say in school forums such as football games, sports pep rallies and school assemblies.

Kennedy, who is likely to hold a key vote and have a significant influence this time, too, told the Santa Fe school district's lawyer, "What we're concerned about is the schools' becoming a forum for religious debates."

He said the court was "looking for some mechanism" to keep that from happening but that turning the question of whether to have prayers over to a vote of the students "doesn't work."

That is what is done in Santa Fe, particularly for Friday night football games. The students vote to select one of their classmates to deliver a message at the beginning of each game.

The young woman with that assignment this year, Marian Ward, has always opted for a prayer. She and her family were in the courtroom for yesterday's hearing.

Justice Sandra Day O'Connor, whose vote on the issue could be as crucial as Kennedy's, noted that last week, in a decision involving college student activity fees, the court had expressed concern about letting students choose which views are expressed on campus.

Novel issue

She said that submitting the prayer issue to "a majoritarian vote" was novel. "We have not addressed anything like it before," she said.

O'Connor and Kennedy seemed troubled by the prospect of injecting religion into school balloting over prayers. They speculated that if students are allowed to vote on the issue, there would necessarily be campaigns, with students seeking the role of speaker at school events by running on platforms of prayers or their qualities as spiritual speakers.

"This would be a governmental mechanism for selecting speakers," Kennedy said.

Justice Ruth Bader Ginsburg questioned whether a policy controlled by students would be neutral toward religion or among religions.

She wondered whether there was any reason to expect that the result would be recitals ranging across "the spectrum" of religious views, or just those embracing the views of mainstream denominations.

Justice David H. Souter also questioned whether students would be neutral and whether schools would allow them to be neutral.

He suggested, for example, that a student probably would not be allowed to address the crowd at a football game or other school event with the message "Religion is bunk."

Souter also suggested that such a comment would not fit the Santa Fe policy, which specifies that student speech at events must "solemnize" the event.

Justice Stephen G. Breyer wondered whether the Texas school district, in "figuring out a way to have prayers," has chosen a mechanism that "leaves out minority religions."

Scalia sympathetic

Only Justice Antonin Scalia spoke sympathetically about the school prayer policy. He dissented bitterly in 1992 against the last ruling against school prayers.

The school district's lawyer, Jay Alan Sekulow, a conservative Washington legal activist, sought to defend the policy as one that involves only student choice, without school involvement.

The vote to pick a speaker for school events, he said, was not "a vote on prayer."

Only the student chosen determines whether to pray or say something else, and "the student is the circuit breaker" between the school system and the message delivered.

The Santa Fe policy was also supported yesterday by Texas Attorney General John Cornyn, speaking for the state and Bush.

Purpose called `religious'

A Galveston lawyer, Anthony P. Griffin, representing families who oppose the prayer policy, said that "the whole purpose is religious."

He attacked the approach of making choices about prayer through a vote of students.

"I don't think you can subject this to a majoritarian vote and call it neutral," Griffin said.

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