Legalese — Prayer in the Schools

Much in the media these days has been made of school prayer. Many believe that the absence of prayer in the schools is part of the moral downfall of the country. Many believe that the presence of prayer creates an atmosphere of intimidation and/or is illegal.  So the question is not what I think, but rather: What does the United States Supreme Court, the ultimate decider of what the law means, think about the topic?

Santa Fe Independent School District v. Doe, which can be found at 530 U.S. 290 (2000) is the seminal case on the topic. This opinion was written by Justice John Paul Stevens, who was appointed by President Ford in 1975. Unless I say otherwise below, all the quotes I’ve listed can be found in that case.

The Santa Fe case involves a student led prayer prior to a public high school’s football game. There was a policy in place which allowed the students to vote on whether or not there would be a prayer, and then another vote that decided which student would deliver the prayer. Naturally, this case invoked the Establishment Clause of the First Amendment to the United States Constitution, which says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Fourteenth Amendment to the Constitution then ensured that this same prohibition was imposed on State legislatures and the political subdivisions thereof.

The Court analyzed the case this way. “[T]he Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a religion or religious faith, or tends to do so.” [Citations omitted.  Prayers such as the one before the football game “are authorized by a government policy and take place on government property at government-sponsored school-related events.”

The fact that this was voted on by the student body didn’t impress the Supreme Court.  In fact, that seemed to make things worse in the collective mind of the Court (the opinion was endorsed by 6 of the 9 Justices): “[T]he majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced….The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views. Access to a public forum, for instance, does not depend upon majoritarian consent….[T]his student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority.”  [Citations omitted.]

The fact that this was a school event and there were children involved seemed to further exacerbate the problem, according to the Court.  “[T]he ‘degree of school involvement’ makes it clear that the pre-game prayers bear ‘the imprint of the State and thus put school-age children who objected in an untenable position.’”  [Citations omitted.]  The Court went on later to say, “Regardless of the listener’s support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval.”

Because public schools are not only government-sponsored, and not only open to all but mandatory to all people of a certain age, it is important to ensure that non-adherents feel included in the school community.  “School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherants ‘that they are outsiders, not full members of the political community, and an accompanying message to adherants that they are insiders, favored members of the political community.”  Lynch v. Donnelly. 465 U.S. 668 (1984), Justice O’Connor concurring.  [As an aside, Justice Sandra Day O’Connor is a bit of a hero and a lot of an inspiration of mine, appointed as the first woman to the Supreme Court by Ronald Reagan when I was coming of age in 1981.]  In other words, middle school is tough enough without the school itself sending the message to believers of a ‘minority’ religion that they are outsiders.

The fact that this was a football game, which was not mandatory, and not for class credit, also didn’t impress the Court.  The Court talked about the social nature of games, and the fact that players, cheerleaders, band members, and faculty members might have some sort of ‘requirement’ to be there.  “To assert that high school students do not feel immense social pressure, or have a truly genuine desire, to be involved in the extra-curricular event that is American high school football is ‘formalistic in the extreme.’…’[A]dolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.’…The constitutional command will not permit the district ‘to exact religious conformity from a student as the price’ of joining her classmates at a varsity football game.”

“The Religion Clauses of the First Amendment prevent the government from making any law respecting the establishment of religion or prohibiting the free exercise thereof.  By no means do those commands impose a prohibition on all religious activity in our public schools….Indeed, the common purpose of the Religion Clauses ‘is to secure religious liberty.’ [Citation omitted.]  Thus, 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 schoolday.  But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.”  In other words, as long as there are tests and dodgeball games there will be prayer in schools.  And that’s ok.  The problem comes when teachers, administration, or policies get involved in praying.

This damage doesn’t have to be extreme, nor the examples as large as prayer over the loudspeaker at a football games. As Justice O’Connor said in Lynch, “the myriad, subtle ways in which Establishment Clause values can be eroded” must always be kept in mind.

This article was written by a lawyer, but should not be considered legal advice in any way, shape, or form.  It is written for general (and generally vague) informational purposes only.  In order to properly evaluate your case, a lawyer must examine all the facts and circumstances that are particular and personal to your situation.  I have not done that here


About Lori Duff 352 Articles
Lori is the author of the bestselling collection of humor essays, "Mismatched Shoes and Upside Down Pizza" currently available exclusively on Amazon. In order to finance her writing habit, she is a practicing lawyer with Jones & Duff, LLC. She is married to Mike Duff, who is a retired DeKalb County Public Safety Officer, and has two amazing children who make cameo embarrassing appearances in her blog posts and who attend Walton County Public Schools. Her legal column, "Legalese", is meant to de-mystify and humanize the Court system. When asked about her writing, Lori says, "Life is too short not to laugh at every available opportunity. My goal is to make myself laugh -- and hopefully you will laugh along with me."

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