Lawyers representing both sides of this school-prayer controversyoffered their oral arguments to U.S. Supreme Court justices Wednesday.
The case--the first of its kind to be heard by the high court since it ruled in 1992 that school-invited clergy could not give prayers at graduationceremonies--prompted questions by the justices about definitions ofprayer, the possibility of "solemnizing" the sport of football and thedefense of believers of minority faiths.
A decision in the closely watched case is expected by early summer.
Jay Sekulow, chief counsel of the American Center for Law andJustice, argued that the policy of the Santa Fe Independent SchoolDistrict in Galveston County, Texas, does not violate the Constitution'sestablishment clause, which prohibits governmental establishment ofreligion.
He said the policy--which permits a student chosen by his peers to give a secular "message" or "prayer" before football games--could involve a religious statement by a student, but that the school district has a "hands-off approach" regarding the content.
Justice David Souter questioned how one might "solemnize" a footballgame, a notion judged inappropriate by the Fifth Circuit Court ofAppeals, which oversees the region including the school district.
When Sekulow suggested that a message that says "let's encouragegood partnership" could be used, Souter replied that such a messagewould be a "nice speech" but not an invocation.
Sekulow, whose organization was founded by religious broadcaster PatRobertson, argued that if the message did include a prayer, it stillwould be constitutional because the student--not the school--decidesthe content.
"That student is the circuit breaker," Sekulow said of the studentselected by a vote of the student body. "That student determines themessage."
Arguing for the Mormon and Catholic families who sued the schooldistrict, attorney Anthony Griffin of Galveston, Texas, said the policyis unconstitutional because "it endorses religion."
Chief Justice William Rehnquist questioned the difference betweenstudent involvement in a required class and an extra-curricular footballgame.
"Am I wrong in saying no one is required to go to a football game?"Rehnquist asked.
Justice Antonin Scalia continued the line of questioning, asking ifanyone is forced to be a football player, band member or cheerleader.
"When you're a teenager, yes," replied Griffin, prompting thecourtroom to fill with laughter. "That's spoken from experience."
On a more serious note, Griffin, who also represented theAmerican Civil Liberties Union, said that the reason prayers should notbe allowed at public school football games--even as they are allowedbefore Congress and at presidential inaugurations--is "becausechildren need that extra protection."
Justice Anthony Kennedy questioned whether students seeking electionto the position might mount campaigns either promising to giveinspirational prayers or advocating that no prayers should be given.
"That is the kind of thing I think that our establishment clausewants to keep out of the school," he said.
But Sekulow argued that striking down the policy because it permitsa religious message would be a form of censorship.
Several justices questioned the effect of the policy on studentswith minority religious views.
"The school district is forcing schoolchildren to sit there andparticipate," Kennedy said. "This is not a neutral speech policy."
Justice Ruth Bader Ginsburg asked: "What reason is there tobelieve that over time...there will be the full spectrum of speechresulting?"
Texas Attorney General John Cornyn, who also argued in defense ofthe school district, said the answer to that question is open tospeculation.
Justice Stephen Breyer also voiced concern about the breadth ofspeech allowed by the policy. "The mechanism seems to leave minority religions out," he said.
Cornyn countered that "in a world where private free speech isvalued," most people hear speeches with which they might hold adifferent, and minority, point of view.
Sekulow argued that religious speech is protected by the FirstAmendment and "there is no majoritarian vote here on the content of themessage."
Justice Sandra Day O'Connor wondered about how the district's policymight eventually play out in other school settings, including theclassroom. "I think we have to look at the extended application," she said.
Sekulow said after the oral arguments that he hopes the "neutralcriteria" of the policy could apply to other venues than football games,but said he opposes organized prayer in the classroom.