Lawyers representing both sides of this school-prayer controversy offered 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 graduation ceremonies--prompted questions by the justices about definitions of prayer, the possibility of "solemnizing" the sport of football and the defense 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 and Justice, argued that the policy of the Santa Fe Independent School District in Galveston County, Texas, does not violate the Constitution's establishment clause, which prohibits governmental establishment of religion.
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 football game, a notion judged inappropriate by the Fifth Circuit Court of Appeals, which oversees the region including the school district.
When Sekulow suggested that a message that says "let's encourage good partnership" could be used, Souter replied that such a message would be a "nice speech" but not an invocation.
Sekulow, whose organization was founded by religious broadcaster Pat Robertson, argued that if the message did include a prayer, it still would be constitutional because the student--not the school--decides the content.
"That student is the circuit breaker," Sekulow said of the student selected by a vote of the student body. "That student determines the message."
Arguing for the Mormon and Catholic families who sued the school district, attorney Anthony Griffin of Galveston, Texas, said the policy is unconstitutional because "it endorses religion."
Chief Justice William Rehnquist questioned the difference between student involvement in a required class and an extra-curricular football game.
"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 if anyone is forced to be a football player, band member or cheerleader.
"When you're a teenager, yes," replied Griffin, prompting the courtroom to fill with laughter. "That's spoken from experience."
On a more serious note, Griffin, who also represented the American Civil Liberties Union, said that the reason prayers should not be allowed at public school football games--even as they are allowed before Congress and at presidential inaugurations--is "because children need that extra protection."
Justice Anthony Kennedy questioned whether students seeking election to the position might mount campaigns either promising to give inspirational prayers or advocating that no prayers should be given.
"That is the kind of thing I think that our establishment clause wants to keep out of the school," he said.
But Sekulow argued that striking down the policy because it permits a religious message would be a form of censorship.
Several justices questioned the effect of the policy on students with minority religious views.
"The school district is forcing schoolchildren to sit there and participate," Kennedy said. "This is not a neutral speech policy."
Justice Ruth Bader Ginsburg asked: "What reason is there to believe that over time...there will be the full spectrum of speech resulting?"
Texas Attorney General John Cornyn, who also argued in defense of the school district, said the answer to that question is open to speculation.
Justice Stephen Breyer also voiced concern about the breadth of speech allowed by the policy. "The mechanism seems to leave minority religions out," he said.
Cornyn countered that "in a world where private free speech is valued," most people hear speeches with which they might hold a different, and minority, point of view.
Sekulow argued that religious speech is protected by the First Amendment and "there is no majoritarian vote here on the content of the message."
Justice Sandra Day O'Connor wondered about how the district's policy might eventually play out in other school settings, including the classroom. "I think we have to look at the extended application," she said.
Sekulow said after the oral arguments that he hopes the "neutral criteria" of the policy could apply to other venues than football games, but said he opposes organized prayer in the classroom.
Brent Walker, executive director of the Baptist Joint Committee on Public Affairs, said he is concerned about prayers being permitted in other venues, such as assemblies and possibly the classroom if the policy is upheld.
Student-initiated activities such as private prayer huddles before or after games or "oral prayer in the stands" are permitted, he said but the school still controls the pre-game event where the policy permits a prayer from a microphone.
"It's not the prayer that we object to," he said after hearing the arguments. "It's the state involvement in the prayer."
After the arguments, Griffin told Religion News Service that children of the Catholic and Mormon families he represents remain in the school district and continue to feel ostracized in the community.
"It's a small community," he said. "It is not a very popular position to take and we tend to think people who raise protests about prayer as being somewhat as nuts, outsiders, crazy, anti-religion...
"They have a faith, and their faith is just as sacred to them as if they were Baptist or Jewish or any other faith."