6/20/00 9:55 a.m.
A Bronx Cheer for Football Prayer
A misstep by the high court.

By Gerard V. Bradley

he big sports news yesterday was Tiger Woods's awesome triumph at the U.S. Open. The headline beneath it anticipated last night's Game 6 matchup between the Lakers and the Pacers. But over there, in the bottom right column, was the news from Washington. The Supreme Court decided yesterday that public high schools may not "solemnize" football games with student invocations. "Invocations," six members of the Court agreed, are tantamount to "prayer." And student prayer at games, they further agreed, violates the Establishment Clause of the First Amendment. They relied heavily on Lee v. Weisman, the 1992 middle-school graduation-prayer case.

Not every student's prayer, of course. The gangly kid crossing himself in the huddle (or, we should suppose, at the free-throw line or in the batter's box) is safe. But any prayer-like action ("invocation," "solemnization," or other appeal to a higher power) "encouraged" or "endorsed" by school authorities is forbidden.

The outer reaches of the Court's holding are difficult to discern. This is nothing new in church-state jurisprudence, the realm of legendary inconsistencies, gossamer (or finer) distinctions, and a "wall of separation" described by several justices as "a blurred, indistinct, and variable barrier." Let us say that your school district's graduation speaker, or halftime entertainment, is not known to be pious. Say it is Whoopi Goldberg. Whoopi nevertheless surprises one and all by talking about Jesus — favorably. So long as there is no evidence that the school itself encouraged the public display of piety, had no reason to anticipate (and so could not have stopped) it, and in no way subsequently signaled its approval, the Constitution is not offended. Otherwise, you take your chances.

The legal analyst finds a number of jumping-off points in yesterday's ruling, Santa Fe Independent School District v. Doe. (Not the plaintiffs' real name, of course. The lower court granted them anonymity, due to alleged harassment of their unpopular stance. The Supreme Court made much of this supposed danger, always sure to remind that whenever religion and public life mix, someone is likely to be maimed.) The dissenting justices — Rehnquist, Scalia, Thomas — correctly questioned the majority's haste. Santa Fe was a successful attack upon a policy which had never been implemented; it was a "facial," rather than "as applied" challenge. The dissenters quite rightly stated that not every "invocation" or other "solemnizing" message need be a prayer, and that the policy could be implemented in a constitutionally acceptable way.

A little less technically, the case was a boundary dispute: Where is the line between "public" religious speech and "private" religious speech in a public setting? That is the line between old-fashioned teacher- organized school prayer and (now) student halftime invocations, and our kid in the batter's box. The matter was surely debatable in Santa Fe, with evidence in favor of each conclusion. One might have thought this would be reason for patience; but the majority was in no mood to tarry.

The wide-angle doctrinal view: Six justices adhere to the position, first squarely articulated by Justice O'Connor 16 years ago, that the central constitutional norm in the neighborhood is the "endorsement" test. The dispositive question, in this view, is whether any reasonable observer could construe what the government has done as approving religion. Note well: This has nothing to do with coercion. Of course, if one lives in a legal Wonderland (as all too many judges do), there is "coercion" wherever the government says, somehow, to a reasonable observer, God is good. This would have surprised the Founders.

These, and other more or less legal, factors in the majority opinion reinforce the view that the Court's default setting is anti-religious. The Chief Justice, writing in dissent for himself, Scalia, and Thomas: "[M]ore disturbing than [yesterday's] holding is the tone of the Court's opinion: it bristles with hostility to all things religious in public life." Indeed, it does.

But what does that mean? The excruciatingly meticulous privatization of religion. This is Santa Fe's touchstone, its center of gravity, its ultimate concern. The majority writes, matter-of-factly, that they had previously explained that the "preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere." Not principally or predominantly private, with government playing a secondary facilitative, non-coercive role. No role, period.

Another way of expressing this grounding commitment: The Court has decreed that there is no common good in religion, as there is in health, education, and the like. Christian Scientists reject scientific medicine. Individual members of that group may not be forced to accept conventional medical care. But no one supposes that a Christian Scientist student could veto a graduation talk by, say, the United States Surgeon General. (And neither could anyone else, even when the S.G. preached a safe-sex gospel repugnant to all decent people.) Conscientious pacifists may not be forced to serve in the U.S. military. But none could claim a First Amendment trump over a school district's encouragement of military service, or a half-time appearance by drug czar General Barry McCaffrey. Nor could anyone convinced that our drug policies are profoundly immoral. And all this because, objectively speaking, there is a common good in health and medicine, in defense, and in sobriety. People who dissent from these conclusions are just that: dissenters.

When it comes to religion, the world is altogether different. Santa Fe makes unmistakably clear that one person "offended" by a "religious" message is one too many. It is entirely a zero-sum, subjective game: "Their" message v. "our" beliefs. This standing pre-analytical commitment, by itself, undid the school district's main defense. The district was saying, in so many words, that there is a common benefit in "solemnizing" football contests. (Yes, in Texas, perhaps little more than the opening whistle is needed.) One way of doing this would be to have students say something solemn, even to pray. In this way of looking at the matter, there need not be a "we," arrayed over against a "they." All, at least objectively, would benefit from the dignity so ascribed to the occasion. This was, surely, the view of our Constitution's framers, and the majority of Americans up to today.