Justices Leaning Against Prayers Led by Students

The movement for student-led prayers in public schools appeared to run into a solid wall of resistance at the Supreme Court on Wednesday.

Nearly 40 years ago, the court said that the principle of separation of church and state requires a ban on organized prayers in public schools. During oral arguments Wednesday, most of the justices indicated that they are wary of retreating from that rule and allowing a student body to vote on whether to have a prayer at school events.

Justice Anthony M. Kennedy said that it would bring “religious divisiveness” into the schools if students campaign on the issue of prayer. Agreeing, Justice Sandra Day O’Connor said that “it’s a very unusual arrangement” to vote on a religious matter.

At issue is a Texas school board’s policy that permits students to elect one person to deliver an invocation, a prayer or another solemn message at such events as graduation and football games.

Christian conservatives have championed student-led prayers as a matter of free speech. The idea has spread throughout the South and won the approval of some federal judges.

Texas Gov. George W. Bush filed a brief with the high court endorsing student-led prayer and John Cornyn, the state’s attorney general, defended the practice Wednesday.

“This is not the government speaking,” Cornyn said. The students decide what is said and the school board policy is “neutral” toward prayer and religion.

That contention ran into sharp, skeptical questioning.

“Could the student get up and say, ‘All religion is bunk?’ ” asked Justice David H. Souter.

Probably not, a lawyer who represented the Texas school board responded, because the student’s message is supposed to “solemnize” the event.

“What would it mean to solemnize a football game?” Souter inquired further, obviously troubled by the school’s policy.

“Could the message be: ‘Break their necks, make them wrecks?’ ” asked Justice Ruth Bader Ginsburg.

Told that would not be allowed either, she questioned whether the policy truly protects free speech.

“It seems to me the school district has figured out a mechanism to have prayer,” interjected Justice Stephen G. Breyer.

Joined by Justice John Paul Stevens, a clear majority suggested that the student-led prayer policy crossed the line separating church and state.

Over the last decade, the high court and the Clinton administration have stressed that prayer and religious expression are not banned entirely from schools.

Students can pray on their own or with friends at lunch time or in club meetings. Religion can be studied as a subject.

But the Constitution forbids public school employees to promote religion and it frees students from being forced to participate in any religious activity.

Last year, the U.S. Education Department put out guidelines to clarify the law.

“Students may participate in before- or after-school events with religious content, such as ‘see you at the flag pole’ gatherings,” the department said. However, “the right to engage in voluntary prayer or religious discussion does not include the right to have a captive audience listen.”

The Texas case raises the issue of a captive audience. Critics of the school board say that football games could begin with the Pledge of Allegiance and a moment of silence.

Instead, board members have insisted that a student be permitted to lead a prayer. When a judge said that the invocation must be brief as well as “nonsectarian and non-proselytizing,” the school board objected and appealed the issue to the Supreme Court.

Bush joined the case and argued in a legal brief that explicitly Christian prayers should be permitted.

On Wednesday, the justices also heard from a lawyer for several parents critical of the policy, who described a heavy-handed mixing of religion and education in the school district, which is in Santa Fe near the Gulf Coast.

Their children were quizzed about their faith and those who were not Baptists were urged to attend religious revivals, Galveston attorney Anthony Griffin said. When the parents sued, the board adopted the student-led prayer as a fallback, he said.

“It endorses religion. The whole purpose was to endorse religion,” said Griffin. “I don’t think you can have a majoritarian vote on prayer. . . . And I don’t think you have a right to take over the microphone at a school event to pray.”

The American Civil Liberties Union backed the parents’ lawsuit.

The Baptist Joint Committee agreed and frowned on the mixing of church and state. “Prayer is sacred communication with God. Government-sponsorship of prayer demeans this sacred act,” said Melissa Rogers, the group’s counsel. The committee, which represents 11 of the more liberal Baptist groups, said its stand in the prayer case “shows that not all Baptists march in lock-step with Jerry Falwell and leaders of the Southern Baptist Convention.”

Meanwhile, the law firm founded by Pat Robertson defended the Texas school board and its student-led prayer policy.

It is a “neutral policy which permits a student-initiated prayer,” Jay A. Sekulow, counsel for the American Center for Law and Justice, told the justices.

If the high court were to side with the board in the case (Santa Fe Independent School District vs. Doe, 99-62) it would allow most schools to adopt a student-led prayer policy.

A decision is expected in June.

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