Santa Fe Independent School Dist. v. Doe - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 99-62, Santa Fe Independent School District versus Doe will be announced by Justice Stevens.

Argument of Justice Stevens

Mr. Stevens: This case comes to us from the United States Court of Appeals for the Fifth Circuit.

The Santa Fe Independent School District is a political subdivision of the State of Texas responsible for the education of more than 4000 students in a small community in the southern part of the State.

Prior to 1995, the Santa Fe High School student who occupied the school’s elective office of student council chaplain delivered a prayer over the public address system before each varsity football game during the entire football season.

Two families, one Mormon and other Catholic brought this action, challenging that practice as a violation of the Establishment Clause of the First Amendment.

In response to their challenge the district adopted a different policy, which authorized two student elections: the first to determine whether “invocations” should be delivered before football games, and the second to select the student’s spokesperson to deliver them.

The Court of Appeals held that this football prayer policy was invalid.

In an opinion filed with the Clerk, we explained why we agree with that conclusion.

Eight years ago in a case called Lee against Weisman, we held that a prayer delivered by a rabbi at a middle school graduation ceremony violated the Establishment Clause.

Although the case we decide today involves student prayer at a different type of school function, our analysis is properly guided by the principles that so we endorsed in Lee.

The government may not coerce anyone to participate in a religious exercise or to otherwise act in a way that establishes a state religion.

The District argues that Lee is not inapplicable to its football policy because the messages are private student speech, not public speech.

We are not persuaded that the pre-game invocation should be regarded as private speech.

The invocations are authorized by a government policy, take place on a government property at government sponsored school related events.

Although, the district relies on many of our cases involving government created public forums for private speech.

It is clear that the pre-game ceremony in this case is not a public forum.

The policy does not open the pre-game ceremony to indiscriminate use by the student body generally.

Rather, the school allows only one student, the same student for the entire season to give the invocation.

Moreover, the district's selection system does not create a forum for a private student speech because it provides insufficient safeguards for diverse student views.

The majoritarian process implemented by the district guarantees by definition that minority candidates will never prevail and that their views will be effectively silenced, thus placing the students to hold such views at the mercy of the majority.

The messages are also not private speech because the district has failed to divorce itself from the religious content in the invocations.

The text of the policy reveals the school’s entanglement in both the selection of the speaker and the content of the message.

By its terms the policy invites and encourages religious messages.

Indeed, the only type of message that is expressly endorsed in the text of the policy is an invocation.

The term that primarily describes an appeal for divine assistance and, as used in the past at Santa Fe High School has always entailed a religious message.

The invocation is then delivered to a large audience assembled as a part of a regularly scheduled, school sponsored function conducted on school property.

Regardless of the listener support for or objection to the message, an objective Santa Fe High School must perceive the pre-game prayer has stamped with her school the Seal of Approval.

The history of this policy beginning with long sanctioned office of “Student Chaplain” reinforces the perception that the prayer is in actuality encouraged by the school.

Thus, the delivery of such a message is not properly characterized as private speech.

The district argues that attendance of the commencement ceremonies that were reviewed in Lee against Weisman differ significantly from attendance at high school football game.

This argument overlooks the importance to many students of attending and participating in popular extra-curricular activities that are part the complete educational experience.

The Constitution does not permit a school district to exact religious conformity from a student as the price of joining her classmates at a varsity football game.

Of course by no means does the First Amendment impose a prohibition on all religious activity in our public schools.

Nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during or after the school day.

But the religious liberty protected by the Constitution is abridged on the state affirmatively sponsors the particular practice of prayer.

Finally, the district argues repeatedly that the respondent’s facial challenge to the most recent policy is pre-matured.

This argument however assumes that we are concerned only with the constitutional injury that occurs when a student is forced to participate in an active religious worship if he chooses to attend the school event.

But the Constitution also requires that we keep in mind other ways in which Establishment Clause values can be eroded.

Here the mere passage of the policy that constitutes government establishment of religion along with the implementation of an electoral process that subjects the issue of prayer to a majoritarian vote are also constitutional violations.

Accordingly we affirm the judgment of the Court of Appeals.

The Chief Justice has filed a dissenting opinion in which Justice Scalia and Thomas have joined.