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Jewish World Review June 21, 2000 / 18 Sivan, 5760

George Will

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Fumble on Prayer -- AND YOU THOUGHT the Supreme Court could not further split repeatedly split hairs concerning what activities with a religious flavor, however optional or faint, in or around public schools violate the Constitution's ban on "establishment" of religion. Think again.

The court conducts its business after a chant that concludes "G-d save the United States and this Honorable Court," and the court sits across the street from Congress, both houses of which have taxpayer-paid chaplains who pray for divine guidance and blessings. But on Monday the court ruled, 6 to 3, that the Constitution was violated by a suburban Houston school district's proposed policy of allowing students to elect a speaker to make remarks to "solemnize" football games, remarks that could, but need not, include a prayer.

Now, it is weird that anyone thinks Texas high school football needs a solemnity-infusion. Nevertheless, the school district thought its policy would pass constitutional muster because it would involve private, not government-sponsored or approved, student speech.

But not only was the policy not constitutionally bulletproof, it so swiftly drew legal challenges that it was never implemented. And on Monday the challengers won.

Justice Stevens, writing for the majority that included Justices O'Connor, Kennedy, Souter, Ginsburg and Breyer, said such speech by students is not really private. The government "affirmatively sponsors" it. How can it be private speech, Stevens said, when it is carried over a school's public address system? And it might make some people feel bad:

"School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."

Hard feelings certainly can result when religious observances are not confined to gatherings of the like-minded. The first challenge to the school district's policy about football game prayers came in 1995, not from secularists but from a Catholic family and a Mormon family who were offended by what they considered abrasively sectarian and proselytizing prayers. It was then that the school district devised the policy to insulate itself from pre-game student messages by having students first vote on whether to have a student speaker, and then on who the speaker should be.

The majority opinion drew a robust dissent from Chief Justice Rehnquist, who was joined by Justices Scalia and Thomas. Rehnquist charged the majority with "venturing into the realm of prophecy" because it was anticipating what the results of the school district's policy would be if it were implemented.

Conceivably, said Rehnquist, the procedure might have produced a majority of speakers who spoke, say, of sportsmanship, without religious references. Or it might have produced Christian prayer before 90 percent of football games. In that case the school might have reevaluated the policy. Certainly there would have been a record on which the court could base a judgment about the policy's compatibility with the establishment clause. Instead, the majority rushed to judgment, saying that "regardless" of the students' use of their discretion under the policy, "the simple enactment of this policy" constituted an unconstitutional "school endorsement of student prayer."

This case lengthens the court's meandering record of on-again, off-again, and occasionally partial, adherence to a three-pronged test to decide when public policy that touches religion, however tangentially, constitutes "establishment" of religion: The policy is constitutional if, but only if, it has a secular purpose, its primary effect neither advances nor inhibits religion, and it does not foster excessive entanglement with religion.

The three-pronged test disregards the intention of the framers of the establishment clause, which was to ensure government neutrality between religious factions, not between religion and irreligion. And the test has produced some peculiar, even hilarious, rulings, such as the one in 1983, when the court, allowing political prudence to trump the logic of its illogical precedents, said that Nebraska's legislature could continue beginning each session with a prayer by a paid chaplain. Pity the poor chaplain, who suffered the indignity of a court declaration that he did not have the primary effect of advancing religion.

Among the first acts of the First Congress, which wrote the First Amendment with its establishment clause, were the hiring of a chaplain, and the urging of President Washington to proclaim a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty G-d." But, then, Washington at least did not proclaim it over a public address system.

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