THE SUPREME COURT agreed this week to hear another school prayer case, this one concerning whether students can constitutionally initiate and lead prayers at public school football games. Two federal appeals courts have ruled on the matter in the past year. The 5th Circuit has held that such prayers are unconstitutional--though that court has also held that they are permissible at graduations as long as the prayers are nonsectarian and non-proselytizing. The 11th Circuit, by contrast, held that not only are nonsectarian, student-led prayers permissible at school-related events but also that it violates the free speech rights of students to restrict them. The Supreme Court has bitten off only a piece of this dicey question, but it should use this case to clarify that schools have no business promoting prayer.
The Supreme Court has actually never ruled on student-initiated prayers, though it has held that a school district could not invite a rabbi to give a commencement invocation. The argument is that student-led prayer is different, that when students initiate prayer the school is not endorsing religion, merely tolerating speech. And, the court has held, when the government creates a forum for speech, it cannot discriminate against religious speech. Hence, the 11th Circuit held, students must be allowed to pray at school events. The 5th Circuit disagreed in the context of football games, but its rulings on this subject have been a dangerous muddle.
The distinction between sporting events and graduation ceremonies--which the court pegs to the solemnity and seriousness of graduation--is almost a textbook case of judicial legislation. The First Amendment does not apply only to solemn occasions.
Indeed, all of this judicial hair-splitting misses the big picture. From the point of view of the child subjected to unwanted prayer at official school events, the difference between the school asking a rabbi to pray and the same school permitting a student to pray is a meaningless one. The key is that the prayer is being imposed using public resources and the stamp of the school's approval. This is, student-led or not, an endorsement of religion by the schools that violates the Constitution at football games and at graduations alike.
Nor does the fact that the prayers are to be nonsectarian or non-proselytizing save them. In fact, it may make the problem worse. Such terms are essentially undefinable and, if taken seriously, would denude prayers of their meaning and put the courts in the position of deciding the acceptability of a student's communications with God. This is antithetical to the Establishment Clause, which is not, after all, a requirement of Milquetoast religion in public settings. For the courts to dictate the parameters of student-led prayers at official school events does not make that prayer any less a state establishment of religion. It only makes the religion imposed on students one that lacks real spirituality.