Santa Fe Independent School Dist. v. Doe - Oral Argument

Argument of Jay A. Sekulow

Chief Justice Rehnquist: We'll hear argument now in Number 99-62, the Santa Fe Independent School District v. Jane Doe, et al....

Mr Sekulow.

Mr. Sekulow: Mr. Chief Justice, and may it please the Court:

Santa Fe Independent School District has adopted a neutral policy which simply permits student-led, student-initiated speech at football games.

The policy, which can be found in its entirety at pages 104 and 105 of the joint appendix, allows for the individual student to determine the content of the message.

That message may include a prayer at the student's discretion.

The policy does not violate the Establishment Clause, and the United States Court of Appeals for the Fifth Circuit is wrong and should be reversed.

The Santa Fe policy creates a venue for student expression.

It is neutral as to religious or secular speech.

The policy serves the important and legitimate goals of solemnizing the event, promoting good sportsmanship and student safety, and establishing the appropriate environment for competition.

In fact...

Justice Ginsburg: Restraints, are they not?

Mr. Sekulow: I think it's similar to the topical restriction that you would see in a limited public forum case, a Rosenberger, for instance, in the situation there, where it had to be related to educational mission.

Clearly...

Justice Ginsburg: Well, it's a little more precise and constrained than that, is it not?

For example, could the message be, break their necks, make them wrecks, buckle down, boys?

Mr. Sekulow: I would think the school district...

[Laughter]

I think the school district would have the authority, and that's more of a Bethel v. Fraser question than an Establishment Clause issue.

I think under normal school district authority they can control the nature of what's going to be said in that regard.

The policy also specifically states that it can be utilized to establish the appropriate environment for competition.

Clearly, Justice Ginsburg, that would not, but that would be a neutral criteria applied.

It would not be...

Justice Breyer: Would it not... rather than an Establishment Clause problem, what if somebody chose to speak on the subject that, all religion's bunk?

Mr. Sekulow: We...

Justice Breyer: I mean, does that comport with the... I'm not sure what solemnizing a football game is, but assuming there is such a process...

[Laughter]

would that comport with it?

Mr. Sekulow: Well, I think that in a situation like that it would be perfectly appropriate, if the student felt that was going to create the appropriate environment for competition, to engage in that kind of speech.

This is a broad policy.

It's not this limited policy here.

For instance...

Justice Souter: Then what does... just tell me... maybe this is not important, but what is it, what would it be to solemnize a football game?

I thought at least it would require religion, or require religious messages to sound religious, and you say no, it doesn't.

Mr. Sekulow: No, I...

Justice Souter: What is solemnization here?

Mr. Sekulow: Solemnization is bringing about respect, honor, and dignity, and a secular invocation, even, could take place.

It doesn't have to be religious, but a secular solemnized message...

Justice Souter: What is a secular invocation?

Mr. Sekulow: Let every one here... I ask everybody's participation for student safety, and let's encourage good sportsmanship.

That's an invocation.

That's petitioning for assistance.

Justice Souter: Well, that's a nice speech, but it's not what we normally mean by invocation.

Mr. Sekulow: But even...

Justice Souter: And one of the problems, it seems to me, with your case, and one of the problems with the premise of your argument is that it assumes that this language, which we see on the face of the policy now, is descriptive of what, in fact, is going on.

And I will be candid to say that it seems to me that it is asking us to shut our eyes to what the sequence of provisions for this practice shows, and the sequence of provisions shows that we started out with a student chaplain and an invocation and, after the lawsuit was brought, the student chaplain became a speaker, and the invocation gained the alternative of a noninvocation, but it seems to me that there isn't a very realistic basis to suggest that anything different is going on, or intended to go on, from what went on and was intended to go on before the lawsuit.

Mr. Sekulow: First, this is a facial challenge, and the respondents bear the burden here of establishing that there's no basis upon which the policy can be implemented in a constitutional way.

Secondly, there's an independent circuit-breaker here.

Justice Souter: But the... on a facial challenge, we are not required to close our eyes to the context in which the language has come to be.

We don't wait for a specific application, e.g., a Hail Mary.

I guess...

Mr. Sekulow: Hail Mary would probably be appropriate.

Justice Souter: But we don't wait for that, but we don't close our eyes to the context in which the policy arose.

Mr. Sekulow: I think that's correct, and the context upon which this policy arose was after the decision in Lee v. Weisman litigation in this case arose, this school district, pursuant to a district court order, adopted a policy which was actually broader than the district court's order, and here I think it's important to emphasize that the individual student selected, if, in fact, there is a decision to have a student give a message, that that student is the circuit-breaker.

That student determines the message.

There is no way to know what that student's going to say.

Justice Kennedy: Let me ask you about that...

Mr. Sekulow: Yes, Justice.

Justice Kennedy: Mr. Sekulow, and to conserve your time I'll just state my concern...

Mr. Sekulow: Sure.

Justice Kennedy: rather than ask a series of questions.

I assume that the election is offered to us as a saving feature of the program, yet an election doesn't mean anything without a campaign, and if we had a campaign it seems to me that the students might say, I will be a very good speaker, representative of the school, because I am well-trained and well-motivated to give inspirational prayers.

Another student has a poster saying, no prayers in school, and they have a school election, based on the issue of whether or not there should be prayer.

Now, that is the kind of thing, I think, that our Establishment Clause wants to keep out of the schools.

We have a school electoral mechanism, a governmental mechanism for selecting a speaker, and one of the criteria is, I should think, whether or not prayers are going to be given.

Mr. Sekulow: There's two responses...

Justice Kennedy: And if... and I'll just finish.

And if it's not, then it seems to me we're just avoiding the question, and the hard question is, can you give a prayer?

Mr. Sekulow: Well, there is not a majority vote on prayer in this case.

First of all, the way that the structure is set up, the individual student determines content and, secondly, with regard to the approach here, that individual student will make the decision whether, in fact, to include a secular message or a religious message.

Justice O'Connor: But the point of the question, of course, is that there may well be a campaign among students to be chosen and, if that's the situation, then how do you respond to Justice Kennedy's question?

Mr. Sekulow: The district court... and this policy came out of the context of a district court order, which specifically stated that there would be no campaigning allowed on campus.

Now, that was implemented by the district court judge and served as the basis...

Justice O'Connor: But it could be off-campus.

Mr. Sekulow: Sure it could, certainly, but again there is an independent speaker here, and that is the student and no one knows, whether they campaigned or not, what that high school student might say, and I think specifically to strike this policy down requires that the Establishment Clause now place an affirmative obligation on the school district to censor only the religious message of the student and that...

Justice Stevens: Do you think there's a First Amendment problem in a rule that prohibits campaigning?

Mr. Sekulow: Well, that would be a different case, and...

Justice Stevens: But it would be rather strange to be relying on such a rule.

Mr. Sekulow: Well, that's the policy that the district court issued and that is... the order, rather, that the district court issued.

Justice Scalia: Well, I guess Justice Kennedy's problem would be eliminated if the school simply said, the captain of the football team shall deliver the solemnizing message or invocation.

Mr. Sekulow: I think it would be... again, as long as it's a neutral criteria...

Justice Scalia: And if that's the only thing that's... you know, that has to be fiddled with in this arrangement we haven't achieved a whole lot here.

Mr. Sekulow: Well, I suspect that...

Justice Scalia: Or perhaps they could say the student with the highest grade, or something else, and then you wouldn't have the election, and then it would be okay.

Mr. Sekulow: As long as there's a neutral criterion.

Here...

Justice Scalia: Now, before this, I guess before Lee v. Weisman the school used to have somebody deliver a... an invocation...

Mr. Sekulow: There was a chaplain.

Justice Scalia: which was... was it nonsectarian religious?

Mr. Sekulow: There is nothing in the record regarding the specific content of the prayers under this policy, and there's nothing in the record really about...

Justice Scalia: It could have been, though.

Mr. Sekulow: It could have been.

That was up to the individual student.

Justice Scalia: Whereas under this policy you must allow the student, if he wishes, to invoke Jesus Christ, or...

Mr. Sekulow: That's correct.

Justice Scalia: or say a Hail Mary, or anything else.

Mr. Sekulow: That's correct.

Justice Scalia: That's a real advance.

Mr. Sekulow: The school district has taken a hands-off approach here.

If it's individual student speech... in Mergens, the opinion there focused on, and again it was mentioned in Rosenberger, that there's a crucial difference between the Government as a speaker and a private speaker, and in Lee v. Weisman, Justice Kennedy, the context there was the assumption that the State was the speaker.

The State ordered...

Justice Kennedy: Well, when the student goes to the community as the representative of the school, I should think we would want to have some ongoing supervision by the regular faculty.

We should encourage students to go out into community affairs.

I'm just not sure what the faculty ought to do if they are selecting the speaker and if five members are sitting around on a faculty committee, do we encourage this young person to give prayers or don't we?

It seems to me that is the question we ought to answer in this case...

Mr. Sekulow: That's correct.

Justice Kennedy: if we can.

Mr. Sekulow: And we stay neutral.

This school district has adopted a hands-off policy.

The policy itself states, on page 104 of the joint appendix, that the student volunteer who is selected by his or her classmates may decide what message or invocation to deliver.

Justice Breyer: Yes, but what do we do about the history?

Mr. Sekulow: I think the history is relevant only in this context, that before there was the decision Lee v. Weisman, school districts like this one and others around the country, there was prayer going on and speeches going on in sporting events, or at sporting events and, in this particular case, this school district is trying to comply with this Court's Establishment Clause jurisprudence by adopting a neutral...

Justice Ginsburg: Mr. Sekulow, would it comply equally well if the school district said, now, football is a big event in this school district and everybody comes to the game Friday night, so we want to have everybody, all the registered voters... there are more adults than the school students.

They are interested in what's going on.

The electorate will be the registered voters, and then there will be people who come forward as volunteers, same thing.

Just substitute for the student body of the high school the electorate of the district.

Would that be equally constitutional?

Mr. Sekulow: Well, I think the question first would be whether the... a school district would have the authority to call a general election.

I suspect not.

Secondly, again if it's a neutral criteria...

Justice Ginsburg: Whoever... the school district says, we would like this to be as democratic as possible, so we want to use the democratic process.

Mr. Sekulow: If it's... it would depend... it's too late in the day to argue that facts and circumstances don't have an impact.

Of course it would, and I think in that particular case it would depend whether the policy's neutral.

This policy allows the student to participate, to continue to have participation throughout the process.

They could also vote not to have a message under this policy.

The school district was operating under the context of litigation, where there was a district court order that specifically stated, adopt a prayer-only policy pursuant to a Fifth Circuit decision, Jones v. Clear Creek.

This school district...

Justice Ginsburg: Mr. Sekulow, I don't think that... perhaps I didn't convey clearly enough what I meant.

Registered voters, I think you shied away from that, because that sounds like the Government designating the electorate.

Here, too, the student... these are not students acting individually when they're voting.

It's the students as a body, as an electoral body that the school district has designated that will be the decision-maker.

Mr. Sekulow: Justice Ginsburg, students and adults and members of the community vote throughout both the student's academic life and when they're an adult, and I think if a school district was trying to inculcate the idea of a democratic society and participation, that it would encourage a student voter.

The question about whether the adults could vote, I think if there was authority assuming that they could vote, as long, again, as it's a neutral policy and a neutral practice, that's what...

Justice O'Connor: Well, we had a case decided just this term dealing with submitting to student election the participation and use of student fees for certain purposes and expressed some concerns about that mechanism, didn't we?

Mr. Sekulow: That's correct, and in Southworth the concern was the issue of viewpoint neutrality in regard to majoritarian vote.

Here, the viewpoint neutrality is expressed in that the individual student is the speaker, and there is no majoritarian vote under this policy.

This is a plurality.

Justice Kennedy: Well, I don't have too much... in Southworth we'd already... our predicate was there'd already been invasion of First Amendment rights, and this was just a corrective, and here the whole question is, ab initio, what are the...

Mr. Sekulow: That's correct.

I think...

Justice Kennedy: the rights of this... it seems to me what we're concerned about is avoiding the schools becoming a forum for religious debates, and one thing we could do is say, it is unconstitutional, illegal to say a prayer at all.

Never.

This is a very costly intervention when the school seeks to go out into the community.

I understand that.

Mr. Sekulow: There would be very serious First Amendment issues.

Justice Kennedy: Now, if we don't adopt that wooden, rigid rule, then we still are looking for some mechanism to ensure neutrality, to keep divisiveness out, and I haven't seen what it is in this case.

Mr. Sekulow: The neutrality... sorry.

Justice Kennedy: I think the election thing doesn't work, for the reasons I suggested and that Justice Ginsburg has been asking you about.

Mr. Sekulow: Well, I think the ultimate circuit-breaker exists here even under this election context, and that is, the independent, individual student who decides to make the message, if they're selected by their peers, determines the content.

I think we...

Justice Souter: Well, but Mr. Sekulow, even if we... and I'm... because of my first question I don't... I'm sure you will understand I don't find that enough of an answer.

But assuming it is, if the student who is chosen exercises that student's choice to pray, we are still faced with a system in which it is the school or the school district that provides the forum in which this is going to appear, requires the attendance of a certain number of students to be there and, therefore, requires those students to sit there while a prayer is going on.

What more do we need to decide the Establishment Clause case?

Mr. Sekulow: I think, Justice Souter, this is a policy that this school district adopted utilizing a neutral criteria.

We're presuming that we know what the students are going to say.

Justice Souter: And I'm assuming... I'm assuming for the sake of the question...

Mr. Sekulow: Okay.

Justice Souter: that the criterion will be accepted as neutral.

Mr. Sekulow: Okay.

Justice Souter: And I'm taking it to the next step, and I'm saying, if the student who is given this neutral option chooses to use that option to pray, the school district is forcing schoolchildren to sit there and participate in this praying ceremony.

Mr. Sekulow: I...

Justice Souter: And it seems to me that's as far as we have to go to decide the case, even on your premise.

Mr. Sekulow: Justice Souter, in Lee v. Weisman your concurrence, footnote 9, states that if there is a neutral policy and the student... and the speaker, not a State actor, engages in speech of their own choice, that even if it's religious, it doesn't violate the Establishment Clause.

Justice Souter: We're talking here not about a neutral choice to engage in kinds of speech.

That was going on, for example, in Rosenberger.

I didn't accept the characterization, but that was the Court's characterization of it, and that's the law.

Mr. Sekulow: But then we're left with...

Justice Souter: This is not a neutral speech policy.

The premise of my question is that we are not having a discussion about religion.

It is not merely religious subject matter.

It is religious worship.

It is an act of religious practice.

Mr. Sekulow: And that... if the student decides to engage in a prayer, that is speech protected by the First Amendment, and to then say that a policy...

Justice Souter: As private speech.

The question is whether that speech can be, in effect, involuntarily inflicted upon those who may not want it by the power of the State.

Justice Scalia: Mr. Sekulow, is...

Mr. Sekulow: We think not.

The student doesn't become a State actor.

Justice Scalia.

Justice Scalia: Is there a distinction between prayer as violating the First Amendment and proselytization, or for that matter criticizing religion as violating the First Amendment?

Mr. Sekulow: All speech is protected by the First Amendment, and I think that the school district would be placed in the position of censor if they were to determine that that was not going to be allowed.

Justice Souter: That may be a weakness in Rosenberger, but it has nothing to do, it seems to me, with the point that is being raised here.

Mr. Sekulow: I think it has... with respect, Justice Souter, has everything to do with it, because it requires the affirmative obligation to censor the student's speech.

Mr. Chief Justice, I'd like to reserve the remainder of my time for rebuttal.

Argument of John Cornyn

Chief Justice Rehnquist: Very well, Mr. Sekulow.

General Cornyn, we'll hear from you.

Mr. Cornyn: Mr. Chief Justice, may it please the Court:

Respondents ask this Court to simply assume the worst of the school officials involved and of the students who will ultimately be the speakers under this policy, which has yet to be applied because its application has been suspended while this litigation goes forward.

We submit that under the standard of review of a facial challenge that respondents' burden is heavy to show that it could never be constitutionally applied, and we believe this school district, just as in Agostini, is entitled to the presumption that school officials will faithfully discharge their duties according to the law, as laid down by this Court.

There is no evidence to support the conclusions offered by the respondents that this is somehow a sham, or a pretext.

Indeed, the trial court below found that any incidents which gave rise to this litigation were isolated incidents.

Justice Scalia: General, do you assert that this facial challenge has to fail simply because it is not necessarily the case that whatever student is selected will deliver a prayer or a religious invocation?

Is that alone enough to defeat the facial challenge?

Mr. Cornyn: No, Your Honor.

We believe that this policy is one which the school officials attempted to come up with in light of this Court's decision in Lee v. Weisman, in light of the controlling Fifth Circuit precedent, at least that the district court felt was controlling.

Jones v. Clear Creek, they were trying to work their way out of a very practical problem.

How do we avoid getting sued for Establishment Clause violations?

How do we avoid getting sued for a violation of the free speech clause?

Justice Kennedy: I thought your answer to Justice Scalia would be yes, it's completely sufficient.

We don't know how this policy is going to...

Justice Scalia: You surprised me.

Justice Kennedy: Maybe nobody will...

[Laughter]

Mr. Cornyn: I misspoke if that was my answer.

I did... I... excuse me.

I did misspeak, then.

We believe this policy does pass muster under a facial challenge, because we don't know what the choice is ultimately going to be by the student, the selected speaker.

There is no way that respondents or anyone else can predict how the student chosen through this neutral mechanism is ultimately going to respond to this...

Justice Breyer: As soon as it's in place once and they give one prayer, then the case is back.

Is that right?

Mr. Cornyn: I think not, Your Honor, and let me just... unless the Court is going to say the school district must engage in viewpoint discrimination...

Justice Breyer: But that's your basic substantive argument.

I mean, that was the... I understand that.

Is there any... I mean, there are prayers in public places, they're called invocations, in Congress, here, at the inauguration of the President and so forth, and I gather that in Texas this is a big community event, but I take it no one is saying that for that reason they could have an invocation of God's name.

Mr. Cornyn: Well, the only reason we believe...

Justice Breyer: I mean, it's...

Mr. Cornyn: that this policy is constitutional is because it is neutral with regard to the message.

Justice Ginsburg: General Cornyn...

Justice Breyer: All right.

So you're not saying...

Justice Ginsburg: on the neutrality, may I ask you, that's been repeated by Mr. Sekulow and you.

In, I think it was Justice Kennedy's opinion in Rosenberger, he defined neutral criterion this way.

He said, there must be good reason to believe that over time the criterion will yield expression reflecting the whole spectrum of political speech.

So if you're going to assert on a facial challenge that you have a neutral criterion, what reason is there to believe in this case that, over time, what we will see as a result of the policy the State has initiated, that there will be the full spectrum of speech resulting?

Mr. Cornyn: Of course, this facial challenge, the policy that has yet to actually be applied, we can only be left to speculate, but let me suggest that in Bethel v. Fraser, Matthew Fraser, who was disciplined for making a sexually explicit speech when nominating a fellow student for student council, was later elected by his peers to speak at the graduation ceremony, and I think respondent's argument is really just wrong in that it assumes what the nature of the speech will ultimately be, the criterion upon which the student will be selected.

Justice Scalia: General, I assume that that statement in Rosenberger, which said the full spectrum of political speech, focused on political speech because that's what the policy that the school put in place was intended to foster.

If it's a limited-purpose forum in this case I think all you would have to defend is that there would be the full spectrum of solemnizing and of solemnizing speech, which would be students saying, you know, let's pause in memory of the members of the football team last year who got killed in a car crash, or whatever.

Why would you want to defend the proposition that all manner of political speech would... I mean, surely all manner of political speech wouldn't be allowed in this case.

It's only solemnizing speech that...

Mr. Cornyn: Under Cornelius and other cases by this Court the school officials can keep the students on topic for the purpose for which the opportunity to speak is allowed, but solemnization...

Justice Souter: Let's assume that they stay on topic and, taking Justice Ginsburg's question as limited to that, I think she's asking a factual question, not a question about precedent but a question about fact, what could be expected, and let me just add a footnote to her question.

Is there any reason that anyone would expect that we would get a solemnizing speech to the effect that religion is bunk?

Mr. Cornyn: I just don't think any of us know, and I don't think the Court should have to guess.

Justice Souter: But the question is, do we have reason, if we're going to apply this definition of neutrality, and assuming it's appropriate, do we have reason to believe that, over time, that kind of a spectrum of expression on religious subjects is going to occur here, and I mean, the point of my question is, I don't think there's any reason to expect that there's going to be a speech at those football games saying religion is bunk.

Mr. Cornyn: Respectfully, Your Honor, we just don't know, and I don't think...

Justice Souter: Well...

Justice Breyer: That's what's worrying... look, from an Establishment Clause point of view, this is a mechanism.

It seems to me that the school district has figured out a way to have a prayer, but the mechanism itself seems to leave minority religions out more.

I mean, instead of a general prayer, you'd have something that reflected the majority view, which is understandable, but from the point of view of the... I'm not saying it's a bad speech.

I am saying, though, that wouldn't the minority person be likely more left out under the policy that you advocate today, that even under a policy that said some kind of nondenominational prayer like an invocation was okay.

Mr. Cornyn: Your Honor, in a world where free speech is valued, where private free speech is valued, we are all inundated by messages we disagree with and find ourselves in a minority status from... on a daily, perhaps hourly basis.

Justice Breyer: That's true, but the purpose of the Establishment Clause is to allow families to raise their children in the religion of their choice, and we have schools favoring one religion over another, and giving that kind of message, isn't that very contrary to the purpose?

Mr. Cornyn: Respectfully, Justice Breyer, I disagree.

This is not the Government speaking.

This is a private individual speaking as a matter of their own volition and free choice.

Justice O'Connor: Well, but it is through the mechanism of the school organizing a majoritarian vote to determine it, which is a very unusual sort of an arrangement.

I don't think we've addressed anything like that before.

Mr. Cornyn: Justice O'Connor, of course, as this Court's observed, there are always going to be interaction between school officials and religious expression, and it's impossible to totally separate the two.

This...

Justice O'Connor: Well, presumably if this mechanism is approved here the same thing could be done in every classroom every day, and let the students decide each day on a speaker for the day to start the class and so forth.

I think, you know, we have to look at the extended application of this concept.

Mr. Cornyn: We certainly do not submit that this could occur in the classroom which, as the Court observed, risks the appearance of Government entanglement, and with compulsory education requirements and the like.

This is an extracurricular event.

Justice Stevens: But may I ask this question, just to be sure I have it in mind?

Mr. Cornyn: Yes.

Justice Stevens: The person who's elected gives the solemnizing invocation for every football game at home, right?

Mr. Cornyn: Message or invocation.

Justice Stevens: Whatever it is, but repeated messages, so that if the school disapproved of the first message that the person gave, the person could continue to give the same message over and over again?

Say he used foul language in his message, for example.

Could they tell him not to do that next time?

Mr. Cornyn: Yes, sir, they could.

They could, Justice Stevens.

The Court has made clear that they can... that the school officials can maintain good order and make sure that...

Justice Stevens: And supposing he made an appeal to one particular denomination.

Say 90 percent of the people in school were Mormons, and he made some specific appeal to people of that religion, could they suggest next time he not do that?

Mr. Cornyn: If it was not on topic...

Justice Stevens: Well, it's right within... squarely within the language of the policy.

Could they suggest to him that maybe that had gone overboard a little bit?

Mr. Cornyn: May I answer the question?

Chief Justice Rehnquist: Yes, you may, shortly.

Mr. Cornyn: It would be impermissible for school officials to edit or censor the content of the speech, as long as it was on topic.

Justice Stevens: Even if it's overtly sectarian?

Mr. Cornyn: As long as it's on topic, that's correct.

Chief Justice Rehnquist: Thank you, General Cornyn.

Mr. Cornyn: Thank you.

Argument of Anthony P. Griffin

Chief Justice Rehnquist: Mr. Griffin, we'll hear from you.

Mr. Griffin: Mr. Chief Justice, may it please the Court:

In July of 1996 there was a hearing held in the district court in Galveston, Texas.

In that hearing, the court, the district court, took testimony and part of the testimony came from the Dogs, as they're affectionately known, in this case.

Justice Scalia: Could I ask you about that?

That's just a curiosity I have in this case.

I don't even know who the plaintiffs are.

Is there... how come it's Jane Doe?

I mean, are these minors?

Is... or what?

Mr. Griffin: One parent is... one parent, one group of plaintiffs were Catholic, a Catholic family.

Another group of families were a Mormon family.

Justice Scalia: Do people have rights to sue anonymously in Federal court?

Is anybody who just doesn't want it known that he's bring a lawsuit, he's ashamed of it for one reason or another, can sue anonymously?

I didn't know we could do that.

Mr. Griffin: I think the jurisprudence is, if there is a threat of intimidation, if there's a threat of violence, if there's a threat... and I think there was testimony that... within the temporary injunction when the case first started that there was this threat, and the district court had entered an order instructing not to ferret out the names, and when there was an attempt to ferret out the names...

Chief Justice Rehnquist: Well, how does the district court have authority to do that?

Mr. Griffin: Well, he had an attempt... he had the authority to protect the plaintiffs, in other words, from any threat.

The names of the plaintiffs were known to the defendant.

Chief Justice Rehnquist: What was the threat?

Mr. Griffin: The threat was, we had information that certain children were intimidated, certain children were pushed, certain plaintiffs, certain people who were not plaintiffs had to pull their children out of the school because of protesting the prayer policies that existed in Santa Fe, and that there was a intimate threat that the district court saw it necessary to protect.

Chief Justice Rehnquist: Well, do you think the district court just has complete discretion to grant anonymity that way?

Mr. Griffin: I don't think the district court has the complete discretion, and I think that one of the issues that we briefed at the trial court below was that issue, and when we got to the... into the hearing of July of 19 and 96, the district court said, now that we're going into a hearing, these names must be revealed, but we will do it under protection.

He did not seal that courtroom.

He asked the press not to publish their names, but their names ultimately became...

Chief Justice Rehnquist: Their names ultimately were...

Mr. Griffin: Yes.

Their names ultimately became known to the public and... but they were not published in the newspaper, and in this hearing one of the most fundamental things that happened in the hearing after the district court had gone through the problem of the injunction, after the district court had instructed not to ferret out the names, after the court had heard testimony in terms of intimidation, the district court looked at the plaintiff, known as Susan Doe in the record, and he asked her, what is the big deal?

And she looked at the court and she said, I teach my children at home religion, and I don't want to go down, and I don't think it's necessary for me to go down to the school and interview every one of the teachers and find out their religious faith.

That's the backdrop of this case.

In this case, the policy of Santa Fe Independent School District is unconstitutional on its face and it's also unconstitutional as applied.

It endorses religion, its whole purpose was religion, and what, in fact, they do, they weave a web, and they seek to have this Court ignore their history.

On page 94 of the joint exhibit, joint appendix of this Court, it has the chaplain policy that existed long after Lee v. Weisman and if my memory serves me well, Lee v. Weisman was decided in 1992.

This lawsuit was brought in 1995, and that chaplain's description, that official description, says that he will lead... he or she will lead the Pledge of Allegiance, that he or she will say a prayer at all meetings, not just some meetings, all meetings, that he or she will lead the prayer at football games and baseball games, or athletic events, and in the joint stipulations that the parties filed...

Justice Scalia: Of course, it wasn't clear at the time... in fact, it still isn't clear, is it?

that Lee v. Weisman applies to football games.

It surely applies to commencements, where the... your client's child would presumably have to go, but your client's child doesn't have to go to football games, and it may well be that the rigid rule we adopted in Lee v. Weisman that you cannot have even nondenominational invocation at graduation, would not apply to football games.

Mr. Griffin: Justice Scalia, I think that's a good point, but one of the things... we oftentimes speak to our lawyers, and one of the things we cited in our briefs was, the lawyer for Santa Fe admitted to the district court that Lee v. Weisman had not been extended... excuse me.

Jones had not been extended to football.

In other words, the Fifth Circuit had allowed graduation... had allowed graduation prayer in a limited context, and the court said, how about football, and counsel admitted, well, it hasn't been extended, but we want to press it as far as we can press it.

That's the admission of their lawyer.

Now, even if it's not extended...

Chief Justice Rehnquist: Is that so strange that an attorney would want to press a particular decision the way his clients wanted to go as far as it could be pressed?

Mr. Griffin: It's strange in this context, that you have a official policy that's still in existence in 1996, 1995 that defines a chaplain to do prayer at all events and all meetings, and that's a student officer.

Chief Justice Rehnquist: That isn't the present policy, is it?

Mr. Griffin: Well, it changes, and if I can address the Court's... what, in fact, occurred, Chief Justice, what in fact occurred is, after the lawsuit was filed, the school district then said, let's conduct a vote to determine whether there's prayer, in other words, majoritarian vote.

They vote even before the change of the policy.

Chief Justice Rehnquist: Well, what's that got to do with it?

Mr. Griffin: Well, they then changed the policy, and they changed the policy in September of 1995, and in September of 1995 they changed it to read, prayer... excuse me.

The board has elected to allow an invocation, and then, once they looked at the policy once more, and I know this Court has instructed us not to take the caption of a... an act to make a determination as to the meaning of the act.

The caption of the act said, prayer at football games.

The meaning of the act, when you look at the very words, when they are modified in September of 1995, they included the board, which is government only involvement, had elected to allow...

Chief Justice Rehnquist: Mr....

Mr. Griffin: an invocation.

Chief Justice Rehnquist: I'm curious to know why you're going into these antecedent details when the question we granted certiorari on is the present policy.

Mr. Griffin: Two reasons, Your Honor.

If we go to the amendment in February of 1996, the present policy, that present policy was changed to include the words, message and/ or invocation.

Chief Justice Rehnquist: And how does that bear on your argument?

Mr. Griffin: Well, two points.

There were existing policies in existence at the school district that allow silent prayer.

There was existing policies in the school district that allow people... the students to express their religious beliefs.

There were... there was no need for to basically isolate prayer and give it a free pass, and that's what those present policies did.

Answering the Chief Justice's question directly, I don't think we can divorce ourselves from the history and the context of this policy.

Justice Kennedy: Well, I'm not saying that you can't try your case or argue the case that way.

On the other hand, for this Court to take individual school districts and say that we don't accept at face value what their policy is puts us on a very difficult course for later cases.

I take it that even if this school district had had no prior history of the type you describe, that you would object to this policy.

Mr. Griffin: Yes.

It's majoritarian prayer.

Absolutely.

Justice Scalia: Well, it can be majoritarian prayer, and you expect that in most cases it will be, but it need not be.

Mr. Griffin: No.

Justice Scalia: I mean, on it's face, it need not be.

Mr. Griffin: On it's face, it's majoritarian prayer, that in fact the school board comes in...

Justice Scalia: No, but the majority can elect somebody who does not want to give a prayer.

Mr. Griffin: They can.

Justice Scalia: So then it's not necessarily majoritarian prayer.

Mr. Griffin: And they can elect to give, they can elect a person to give a prayer for the next 10 years who will not give a prayer.

Justice Scalia: But you can't say that in every case it's going to produce a prayer.

You just can't.

Now, you may suspect that in most cases it will, but you know, when we appoint chaplains in the Armed Forces on the basis of what the needs of the members of the Armed Forces are, you can predict that the majority of them are going to be Christian chaplains, but that doesn't mean that the Government is favoring one sect over another.

Why does it necessarily mean here that the Government is favoring prayer over nonprayer?

It's just opened it up and say, you do what you want.

It knows what the result will be, as you predict.

Mr. Griffin: Well, we... well, may I address that, Justice Scalia?

Justice Scalia: I hope you will.

Mr. Griffin: Okay.

I will attempt so.

It doesn't open the forum.

It doesn't create a diversity of views.

It doesn't create a circumstance where a student can stand up and say, you know, religion, to borrow the words of Justice Souter, religion is bunk.

There's nothing in the face of this policy that allows... and I think the Attorney General has admitted as much.

He has stood before this Court and said, well, if it's outside the realm, we can... the student can still be disciplined.

There are still governmental problems.

Justice Scalia: Why... I don't think that you have to show, in order to prove this is a neutral law, that somebody can get up and say religion is bunk.

I mean, we have a provision for a Thanksgiving proclamation.

Now, I assume a President can, if he wishes, issue a neutral one that is nonreligious, or he can issue a religious one.

I cannot imagine his issuing one that says religion is bunk, because it does not pertain to the subject matter for which the proclamation was designed, and it's the same thing at football games.

The only reason religion is bunk is out is because it's not within the subject matter of solemnizing the occasion.

Mr. Griffin: Student-initiated prayer in my mind has it that if I have a different faith, or faith, I can pray before the football game, I can pray after the football game, I can even pray during the football game.

In other words... but I don't need the Government's forum.

I don't need to hold the Government hostage and say, I have an absolute right to take over the microphone, to take over the stage.

You have to let me speak.

Justice Kennedy: So you would...

Mr. Griffin: That's not the concept...

Justice Kennedy: So you would say that even if these speakers were chosen by lot, and they were widely representative speakers on a statistical basis, that if, by chance, one out of five were giving prayers, that it would be an unlawful exercise one... that one-fifth of the time?

Mr. Griffin: It depends on, Justice Kennedy, what the policy would say.

If it says, you're chosen by lot to give a message and/ or invocation, absolutely right, the policy still fails.

Justice Kennedy: They're chosen by lot to represent the school and give the school a good name.

Mr. Griffin: Tougher question.

I think they can... they... if they're chosen by lot to give the school a good name, then I think that's a tougher question.

It may be an as-applied case.

In other words, we look at the history and see how it's applied.

Justice Kennedy: Well, I'd like to know just a little bit about that.

In Justice Scalia's example, where you want to recognize the fact that there's been an accident where team members have been killed, or some terrible tragedy is... it would seem to me very odd not to have an invocation in that circumstance.

Mr. Griffin: I think oftentimes when there's disaster people bond in their churches.

I think oftentimes people express their religious beliefs.

In fact, under the current policies in the stipulations, and I think it was tab 9, the policies allowed for expressing religious beliefs.

I don't think that you can subject it to a majority vote, majoritarian vote, and then say that's a neutral policy.

Justice O'Connor: Well, let me ask you this.

Suppose that the school had no stated policy but did allow the captain of the team before every game to get up and say something, and suppose the captain on occasion says something in the nature of a prayer, is that somehow invalid?

Mr. Griffin: I still think that it's problematic.

I think that's also...

Justice O'Connor: I would have thought that would not be school-directed at all.

Mr. Griffin: I think, in borrowing this Court's language, this Court oftentimes has said that we look at the particular facts of a case.

We would want to know, for example, is this directive consistent.

It is the same...

Justice Ginsburg: Then you would have an as-applied challenge, and in this...

Mr. Griffin: Yes.

Justice Ginsburg: very case the language, as you pointed out, is message or invocation.

Suppose all that the policy said was message and dropped, or invocation.

Could you maintain a facial challenge?

Mr. Griffin: I've thought about that, and let me see if I can address it this way.

You can still, in my way of thinking, maintain a facial challenge even if it just says message, and I think that one of the problems that we face in terms of the facial challenge is, I don't think we can divorce ourselves from the history and the context of what's going on.

If that speech is given at the same time, if it's given at the same time that the chaplain gave his speech, everyone understands what's going on there.

Everyone...

Justice Ginsburg: So you can never purge the past.

If you put even a policy that looks like it has nothing to do with religion...

Mr. Griffin: I think you can purge the past.

I would never say that, and Chief... excuse me, Justice Ginsburg, I would never say that.

Justice Scalia: If it says just message, that seems to be purged.

I mean, it isn't even alluding to anything that even sounds like a prayer, as you believe invocation does.

Mr. Griffin: Justice Scalia, this Court has oftentimes looked at pretext.

In fact, the Fifth Circuit described this policy, even...

Justice Scalia: But not even a facial challenge.

I mean, bear in mind this is a facial... I mean, I think the question is whether you could maintain a facial challenge if they just used the word message.

Mr. Griffin: And I know it sounds strange, but I'm willing to say that yes, you can maintain a facial challenge even if they took away the word, invocation...

Justice Breyer: Mr....

Mr. Griffin: because if it's...

Justice Breyer: No, I didn't mean to interrupt you.

Mr. Griffin: If it's given at the same time, if it's given under the same policy, if everything is consistent with the past policy, the Court is entitled to look at that, and when you look at the words of this, it is subject to a vote, the issue of...

Justice Breyer: Okay, but your answer, I take it... I think your answer would be different if the school in order, in its view, to comply with Lee and Weisman ended the practice of football prayers, and then at some time later, maybe even simultaneously, enacted a new policy that at 2:00 every afternoon in the school 5 minutes will be given over during a break between periods for an elected student to give any message that the student wanted, would you find that that, the 5-minute message statement, would equally be susceptible to a facial challenge on Establishment Clause grounds?

Mr. Griffin: I'd still have a problem with it.

Justice Kennedy: You would even then?

Mr. Griffin: I would still have a problem with it.

I would not have a problem if it was a diversity of views.

I would not have a problem if it opened the forum up consistent with Mergens, consistent with Lamb Chapel, and opened the forum up to create a diversity of views.

Justice Kennedy: Okay, students chosen by lot, then.

A rotation of students.

Mr. Griffin: It gives both...

Justice Kennedy: In the course of the year, 180 students could speak.

Mr. Griffin: By lot, by grade point average, by, you know...

Justice Kennedy: But if you had the 180 students... well, it wouldn't be 180.

If you had a student a week at every football game, given the choice to speak at the time the invocation used to occur, you would have the problem.

Mr. Griffin: Yes, and there's another problem with...

Justice Kennedy: So context is everything.

Justice Breyer: Why is... why... can I... I don't what to... if you're finished with this, because I've a different question I wanted to ask.

Mr. Griffin: Okay.

May I...

Justice Breyer: Yes.

Mr. Griffin: There's another problem, though.

There has been a description that this is an extracurricular activity.

It doesn't take a creative genius to start the first part of the day with the notion that the first part of class is extracurricular.

The first 15 minutes of every day we're going to have extracurricular.

We pass a policy that says, wink, wink, students, you understand, we're going to have a message.

Chief Justice Rehnquist: Well, but I...

Mr. Griffin: They conduct a... excuse me.

Chief Justice Rehnquist: I think that if you say extracurricular but you have to be in class, that's not the same as going to a football game.

Nobody has to go to a football game.

Mr. Griffin: In the briefs of the parties, Chief Justice, there has been a description of football where they deminimize football.

One of the amicuses says football is football in Texas.

We supported the amicus and said, football is football.

The district court said, football is awfully more important in Texas.

Chief Justice Rehnquist: Well, it may be more important in the eyes of lots of people than classes, but is different in that nobody... am I wrong in saying that nobody is required to go to a football game?

Mr. Griffin: The band, Chief Justice, is.

Chief Justice Rehnquist: Well...

Mr. Griffin: One of our plaintiffs was a band member.

Chief Justice Rehnquist: Well, say students.

Students who are not in the band or on the team.

Mr. Griffin: Students who are not in the band, the cheerleaders, anyone who supports the team.

Justice Scalia: Is anybody forced to be a cheerleader, or a band member, or a football player?

Mr. Griffin: When you're a teenager, yes.

[Laughter]

And that's spoken from experience.

In the...

Justice Kennedy: It seems to me that part of the problem is that it's very important for kids to have school activities after hours.

That's when they keep out of trouble, their advisors are close hand, at close hand, and what we seem to be saying in order to accept your position is that we want minimum guidance from the schools.

That's somewhat counterintuitive.

Mr. Griffin: But there's not minimum guidance in this policy, and I understand the Court's dilemma, but there's... in this policy itself, they admit, even though when speaking to the Court... the policy itself admits that there is guidance.

They not only set the forum up, they have interaction of the principal, who gives direction on the election.

As the Attorney General says, if the speech is improper, we can still discipline.

That is not minimal guidance.

That is not a diverse forum, and if you look at the brief of the respondent, at no point in time do they tell this Court what type of forum it is.

I don't see any words saying it's a limited forum.

I don't see a word saying it's a public forum, because what, in fact, the Fifth Circuit said was, it was a sham, and the only way that you make it anything other than a sham is, you have to ignore you're electing one speaker to speak at all the games on a majority vote, and the Fifth Circuit not only called it a sham, it said the only way you can do it is put your tongue in cheek and ignore the facts in this case.

Justice Breyer: Suppose I thought that there are certain public events where you can have a... call it solemnizing, or I don't know the word to use to describe it, but you can invoke God's name... say the Inauguration, say the meeting of the Court, say Congress sessions.

Certain public events, you can.

Mr. Griffin: Absolutely.

Justice Breyer: If absolutely, then absolutely we then have to draw a line between the ones you can and the ones you can't, and why... that's what I'd like you to focus on, and there are certainly a lot of people who say, look, high school football games in small communities are really not all that different from the Inauguration, frankly.

Unidentified Justice: [Laughter]

Justice Breyer: They're big public events, and so if you're trying to draw a line, cut through all this and just say it's not like a graduation, it's a big public event, and it's exactly the same thing, and I'd just like you to focus upon that.

Mr. Griffin: In reading this Court's opinions, it has admonished we in the public that this area of law is not necessarily consistent, in other words, straight across the line.

Justice Scalia: Suppose I wanted...

Mr. Griffin: And that's acceptable.

I think that's acceptable, and it's acceptable to this degree.

I think that the debate that goes on in Congress is a little bit different.

Now, we can take notice that in... with respect to the chaplain, even though it's part of a legislative act, they've had this same debate.

That's how divisive religion oftentimes becomes in the forum, that when they seek to nominate a chaplain who was someone other than Protestant, all... everything broke loose.

[Laughter]

And it became part of the debate.

Now, I recognize that it is not a straight-line consistency, but I think, and I will submit to the Court this posture is prudent with respect to secondary schools has been consistent.

Justice Scalia: I don't get your point.

The congressional chaplain is unconstitutional?

Mr. Griffin: No, I didn't say that, and I would never say that.

Justice Scalia: Oh, then therefore anything that could lead to some sectarian controversy is not necessarily unconstitutional.

Mr. Griffin: Absolutely.

Justice Scalia: You cannot eliminate that possibility 100 percent without driving religion out of public life entirely.

Mr. Griffin: Absolutely.

When we drive down the street, we pray to our God.

It's part of our idiom.

Justice Breyer: You're right on the point I'd like you to address, because whether it's a straight line or a crooked line, or whatever the line is, you agree there is a line, and my question is, why doesn't high school football fall on the permissive side of the line rather than the impermissive side?

That's what I'd like you to focus on.

Why?

Mr. Griffin: Schools are different.

Justice Breyer: Because?

Mr. Griffin: Because...

Justice Breyer: Anything associated with a school is more likely to be on the impermissible side of the line, even if it's extracurricular and a community event?

Mr. Griffin: Absolutely.

Justice Breyer: Because?

Mr. Griffin: Anyone...

Justice Breyer: Because?

Mr. Griffin: Because children need that type of protection.

Children, the school district works as a parent.

This Court's case law, for example, in discipline cases oftentimes says that these children can be disciplined because they work as parents, and they don't have the same rights as an adult.

That's clear.

Justice Scalia: But Mr. Griffin, some school functions are educational.

The school is acting as a parent to the children, teaching them, education.

But other school functions in many communities are social.

It's the focus of social activity, and my impression is that that's what school football games are in Texas.

There's very little of the instructional involved in it.

It is a community exercise.

Mr. Griffin: With due respect to...

Justice Scalia: I'll bet you there are even people who go to those games who don't have any kids in the school.

Mr. Griffin: With due respect to Your Honor, athletic events serve a tremendous function throughout this country.

It teaches leadership.

It teaches following rules.

It teaches following the rules of the game.

It teaches sportsmanship.

They serve a tremendous function.

They're just as part of that school as any other event.

And when they put on the side of that stadium the Santa Fe Indians, when they invite folks in, and they bus them in through those buses, when the principal and everyone else shows up, and there's a social pressure that you've got to go to the football game, and when we idolize football players to such a degree that they obtain special rank in our schools, absolutely, they're part of the school system, as well as the pep rally that we hold during the school, before we ever... if a major game is coming up, there's a pep rally, and we let everybody out, and we go idolize our football game.

So I respectfully disagree that with respect to football, football is football, and it is part of our system.

Justice Ginsburg: But in stressing the importance of football, I don't understand you to be making a distinction between, say, dramatic plays, other assemblies that might be less popular in the community.

Would you say that this policy would be all right if it were limited to school concerts, school dramas, any place where the schoolchildren are assembled?

Mr. Griffin: No, I would not say this policy would be all right under drama or any other play, or any other circumstance and the reason is, it still should apply to football as well as baseball, as well as drama, is because there's still that pressure.

When we get those slips to tell us that we have to spend extra money to buy a uniform for our child that we don't want to go to, we're compelled as parents because our school districts expects it of us, so it applies across the board.

This Court has said...

Justice Scalia: Excuse me, social compulsion is certainly not enough.

I mean, in many communities you could say, oh, all the kids belong... they're socially compelled to belong to the Boy Scouts.

That doesn't render the Boy Scouts, you know, the Government for purposes of what things it can do and can't do.

Mr. Griffin: I agree.

Justice Scalia: So you can't just use social pressure alone as the justification.

Mr. Griffin: And I have not attempted to do that.

I have attempted, Justice Scalia, to address your concern that football was somehow different and it was outside the realm of the regular function, the classroom, and that we can somehow say, well, since it's football, let's just let them pray, let's let them do anything they want.

And there's not a school district in this country... they would cringe, and the administrators would cringe if I as a lawyer stood up in front of a board and said, you know what, this is football, they should be able to do anything they want, and I think that's what I was attempting to address.

This Court has said that we should not ever subject the right of free speech and press and fundamental rights of liberty and property to a vote, and it should not depend on the outcome of a vote.

This Court has also said in Southworth that majoritarian vote is simply not viewpoint-neutral, and this whole notion that somehow this becomes viewpoint-neutral as we change the words from chaplain to message... excuse me, to invocation, and then message or invocation, is to put our heads in the sand and ignore the culture and the historical phenomenon of what is happening in Santa Fe, Texas.

It has been my honor.

I thank the Court.

Rebuttal of Jay A. Sekulow

Chief Justice Rehnquist: Thank you, Mr. Griffin.

Mr. Sekulow, you have 3 minute remaining.

Mr. Sekulow: Thank you, Mr. Chief Justice.

First, this is a facial challenge.

This policy has never been applied, never been implemented.

There is not a religious speech exception to the First Amendment.

The idea that a student in a talent show would be told, it would be appropriate to sing John Lennon's song, Imagine, but another student would not be able to sing Amazing Grace is censorship.

The position of the respondents is that there is an affirmative obligation to censor only one type of speech, even if it was just a message policy.

Justice Ginsburg: Well, there is only one speech under the policy that the school board has adopted.

That's why you're bringing in all the cases where the religious group was one among many.

Here, whoever speaks, it's just one speaker.

No one else can talk.

Mr. Sekulow: Well, in that context, the Equal Access Act was triggered if there was only one noncurriculum-related student group, so the fact that it's one speaker...

Justice Ginsburg: Then there... there's another to have equal access.

Here, there isn't.

It's one alone.

It's not one among many.

Mr. Sekulow: And that one student, that one student determines the content of their message.

There is no majoritarian vote here on the content of the message.

The disclaimer's in the policy.

It states on page 104 that the student volunteer who is selected determines the content of the message.

That is private speech.

To make... to have these individual students become Government speakers... and that's what this would require, that an individual student, selected by her peers, determines to give a content of a message, say a nonprayer, just talks about the importance of sportsmanship, that student message would be okay.

But if that same student the next week, or the next home football game, were to give a prayer...

Justice Ginsburg: If under this policy it turned out that every speech was an invocation, including of the Deity, then what would you say about an as-applied challenge?

Mr. Sekulow: Well, I would say this is a facial challenge and that would be an as-applied challenge, and there would have to be empirical evidence that, in fact, there was forum domination.

But here again, though, this is individual student speech, and even if there was one student speaker, that student made... the first week of the home football game give a secular message, and the next week a prayer, there's no... the student is the circuit-breaker here, and the important issue in our view is that in fact you were to have this policy, which does protect a message and/ or invocation.

To strike it down requires there be an affirmative obligation to censor a student speaker, and that would be because the student speaker might...

Justice Ginsburg: But the student speaker, at least on this record that we have, and we have a brief to that effect, says, I'm not going to try to disguise what I'm doing.

I want to say a prayer, and that's what I'm going to do.

In fact, didn't she even sue to establish her right to say a prayer?

Mr. Sekulow: The Court's referring to the Ward litigation and interesting, there, the school district was actually sued because, in trying to comply with the Fifth Circuit Court of Appeals decision, they adopted a guideline that said, message only, and specifically stated that there would be no religious message being allowed to be given at all, and a district court judge issued a temporary restraining order saying that that's viewpoint discrimination, which is exactly our point.

Justice Ginsburg: But you're switching from the point that I was making.

Isn't it somewhat imaginary to say, we have to wait when we're told, I'm going to be honest about it.

I want to give a prayer, not some message.

Mr. Sekulow: Mr. Chief Justice, I see my time has expired.

Chief Justice Rehnquist: Thank you, Mr. Sekulow.

[Laughter]