The current case before the court, Santa Fe Independent School District v. Doe, started in 1995, when the school district was sued by two families--one Mormon and the other Roman Catholic--who objected to Christian prayers being offered at school events by various community clergy.
Santa Fe, Texas, about 35 miles from Houston, is an overwhelmingly religious community of about 8,500 people who have more churches than restaurants in their town. In response to the suit, the school district, seeking to accommodate strong community desire to allow student religious expression at extracurricular events like football games, constructed a policy they believed would pass constitutional muster.
The school district's new policy involved a several-step, student-determined process. First, students vote on whether to have a pre-game student speaker "solemnize" the event and promote good sportsmanship. Second, if students vote to have a student speaker, they vote again to select the student speaker. Third, the student speaker expresses a pre-game message that can be either religious or non-religious. The 11th Federal Circuit Court of Appeals recently upheld a virtually identical policy in Florida.
However, the 5th Federal Circuit Court of Appeals, where this case was heard, ruled in 1999 by a 2-1 vote that prayer over loud speakers before high school football games, as well as the mention of any deity, were unconstitutional. The appeals court did allow a revised policy that required the student speaker's speech to be "nonsectarian and non-proselytizing." In his dissent from this ruling, Judge E. Grady Jolly noted that "today, for the first time in the court's history, the majority expressly exerts control over the content of its citizens' prayer."
The Santa Fe high school students voted to have a pre-game student speaker; Stephanie Vega was the speaker, and Marian Ward was the alternate. When the Santa Fe school superintendent said that if Ms. Vega or others invoked God or used other "sectarian" speech, they would be punished "as if they had cursed."
When U.S. District Judge Sim Lake issued a last-minute temporary restraining order preventing the school from pre-censoring or punishing her speech, Ms. Ward, a Baptist minister's daughter, approached the microphone just before the game in her band uniform and uttered a prayer that mentioned "God" four times and concluded with "in Jesus' name I pray."
The crowd's response was a standing ovation that went on for more than a minute before the announcer intervened.
This is the human story that furnishes context for the case before the highest court in the land.
One major reason the Santa Fe case is before the court, in addition to the conflicting appellate court decisions, is that this case differs in several important ways from what the court ruled unconstitutional in the early 1960s.
First, unlike the situation before 1962, the prayer is student-initiated, not state-initiated. Second, it is student-led, not state official-led. Third, the content of the speech or prayer is student-determined. Fourth, it is not in a classroom, where parents are not present to provide context and explain any divergence from their families' religious expression.
I would hope that a majority of this divided court would accept this attempt by a school district to accommodate itself to the desire of a community. It would have been better--and based on the justices' questions during oral arguments, increases the odds for a favorable decision--if there had been some provision by the school district to allow students from as wide a religious perspective as possible to have an opportunity to "solemnize" an athletic event, in keeping with their own faith perspective, at some time during the school year. That would have answered the objections raised that a student majority, through an election process, could effectively silence minority faiths from participation.
However the court decides this case, and I predict a close decision, this will not be the last religious expression case before the court. It will be a factor in this year's elections, since Texas Gov. George W. Bush, the presumptive Republican presidential nominee, has signed on the state's brief in the Santa Fe case.
Also, an ABC news poll reveals that 67% of Americans support student-initiated and student-led prayer in public schools, with only 27% opposing such prayer. In this spring's Republican presidential primary in Texas, 94% of voters responded in support of Santa Fe-type religious expression at public school events.
Let us all pray that God will give the Supreme Court justices wisdom to make a decision that will maximize individual religious expression--while still protecting the rights of those of minority and no faiths.