By Joan Biskupic
Washington Post Staff Writer
Thursday, March 30, 2000; Page A08

In lively arguments yesterday over a school prayer policy, key Supreme Court justices appeared skeptical of a Texas school district's practice of allowing student invocations before football games.

Justices Sandra Day O'Connor and Anthony M. Kennedy questioned whether the Santa Fe Independent School District policy had sufficient safeguards to ensure that the district did not essentially promote religion.

"What we're interested in avoiding is the schools becoming a forum for religious debate," Kennedy said, plainly worried that the Texas scheme might violate the requisite constitutional separation of church and state.

The two swing-vote justices, as well as some of the more liberal members of the bench, seemed particularly troubled that individuals were selected to offer a pre-kickoff message, religious or secular, by a vote of the student body.

Kennedy suggested that could allow majority religions to dominate.

Yesterday's oral arguments focused on stadium prayer, but an eventual ruling could influence the larger debate about religion in public schools and reveal the justices' positions on an issue that continually confounds the court and roils the country.

The last time the justices took up the topic, in 1992, they ruled by one vote that prayer at a public school graduation violated the First Amendment's dictate that government "shall make no law respecting an establishment of religion."

In that case, the court noted that school officials had organized the prayer exercise and that students were required to attend the graduation.

The policy at issue yesterday allows students themselves to decide whether they want some pregame message, religious or secular, to "solemnize" the event and promote good sportsmanship.

Urging the justices to reverse a lower court ruling against the suburban Houston school district, lawyer Jay Alan Sekulow contended the policy is constitutional simply because control over any prayer is in the students' hands.

"This school district has adopted a hands-off policy," he said. "The student is the circuit-breaker."

But questions from Kennedy, who provided the key vote to strike down graduation prayer in 1992, suggested that he may consider that practice constitutionally flawed.

He noted that just last week the justices cast doubt on the validity of using a student referendum to allocate student activity fees in a case that allowed universities to require students to pay fees that are channeled even to groups whose activities they oppose.

O'Connor voiced concern that if the Texas practice were upheld, students would be able to vote for prayers in other extracurricular and classroom settings. "We have to look at the extended application of this concept," she said.

Justices David H. Souter and Ruth Bader Ginsburg were particularly persistent in challenging the notion that the policy was neutral and did not favor religious views. Souter said he doubted a student would ever be allowed to say, "All religion is bunk."

Anthony Griffin, who represented the two families who sued the district to stop prayer at games and other events, urged the court to look at the case in the context of Christian proselytizing that he alleged pervaded the district. "I don't think we can divorce ourselves from the history or context of this policy," he said.

Chief Justice William H. Rehnquist and Justice Antonin Scalia most closely scrutinized Griffin's claims in Santa Fe Independent School District v. Doe.

They also challenged the notion that students who go to games are effectively captive to any religious message, as they might be at a graduation ceremony.