he U.S. Supreme Court heard arguments this morning in a crucial case which could determine whether "student led" prayer or other religious invocations have a place in the nation's public schools. Groups on both sides of the issue consider SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE to be one of the most crucial state-church separation cases which have reached the court, since a series of rulings in the early 1960s that ended coercive prayer and Bible verse recitation in schools.

   From today's oral arguments, it became clear that justices were already divided on the merits of majoritarian prayer.

   "Where do we draw the line?" asked Justice Stephen Breyer. He noted that the court must rule on whether the student-led invocations at school events represent the exercise of free speech or might "fall on the permissive side of the line" and violate the constitutional separation of government and religion.

   The most skeptical of the nine justices was David H. Souter. He observed that the policy of allowing students to use a public address system "requires (all) these students to sit there while a prayer is going on."

   Justices Anthony M. Kennedy and Sandra Day O'Connor also appeared cautious in accepting the claim that the "student led" prayer minimized the entanglement of government in promoting a religious exercise. Kennedy worried that a policy of having elections to select a student who would give a "message or invocation" might result in "schools becoming a forum for religious debates."

   Attorney Jay Sekulow of the American Center for Law and Justice -- a conservative religious group which is representing the Santa Fe, Texas, Independent School District, emphasized that the current policy leaves the content of any message up to the speaker. Justice O'Connor interrupted and raised concerns that school officials had to be involved to "bring about the selection of the student by majority votes." Sekulow then emphasized what he described as "the crucial difference between the state as a speaker and a student as a speaker." He labeled the policy of having students, rather than teachers and administrator select or lead a prayer a "circuit breaker."

   Texas Attorney General John Cornyn defended the policy, and warned the court about "viewpoint discrimination" in the case of students who had been selected, but chose not to include a prayer as part of their "message." Justice Souter challenged the claim, however, noting that under the Santa Fe policy all students at a game were a captive audience, and that it was unlikely that a student who wanted to deliver a message that "all religion is bunk" would be able to do so.

   Justice Antonin Scalia appeared most sympathetic to the Texas policy. He said that a student could choose to give a "message or invocation," adding "You can't say that in every case it's going to produce a prayer."

   While it is difficult to "read" how justices may vote on a particular case, court watchers already suggest that the final rendering in the Texas prayer case could be a close one. An Associated Press report of this morning's hearing notes: "If the court's decision, expected by late June, were to follow its ideological fault line, Justice Clarence Thomas would join Rhenquist and Scalia; Justices John Paul Stevens and Breyer would side with Souter and Ginsburg." This leaves O'Connor as a possible swing vote.

   The case began in 1995 when two families -- Roman Catholic and Mormon -- decided to challenge the Santa Fe Independent School District's policy of permitting students to select a "message" -- inevitably a prayer -- for recitation at school graduation and athletic contests. A federal judge ruled that prayer at either activity would be permissible as long as it was "nonsectarian and nonproselytizing," and did not refer to a specific God or deity. In February, 1999, a three judge panel of the U.S. 5th Circuit Court of Appeals voted 2-1 to uphold the nonsectarian graduation prayer, but found that a high school football game was "hardly the sober type of annual event that can be appropriately solemnized with prayer."

   For those supporting prayer in public schools, the Santa Fe case represents years of litigation and effort to find a new way of reversing the impact of earlier Supreme Court decisions in cases like ENGEL v. VITALE, ABINGTON TOWNSHIP v. SCHEMPP and MURRAY v. CURLETT. In those decisions, the high court struck down a series of religious practices in schools, including government-composed prayer, unison classroom prayer and Bible verse recitation. The MURRAY v. CURLETT case was brought by Madalyn Murray O'Hair -- founder of American Atheists -- and her son Bill Murray who later became an evangelist and today supports prayer in public schools.

   Aided by groups like Pat Robertson's American Center for Law and Justice, school prayer boosters have argued that earlier court rulings prohibit government-sponsored prayer, and that when led or initiated by students, any prayer or other religious ritual should pass constitutional muster. Sekulow's group argues that the prayer is more an example of free speech than government-sanctioned religion.

   "If the establishment clause is used to strike this policy down," Sekulow argued, "it means the school district would have the affirmative obligation to censor the religious message of student speech and only religious content when other student speech would be allowed. The alternatives here are censorship..." Attorney Anthony Griffin, though, who represents students and parents in this latest Texas case, said that school sponsored football games are "part of the school system."

   Speaking from the perspective of a pro-prayer student, Griffin told the court, "I can pray before, after and even during the game. I don't need the government's forum. I don't need an absolute right to take over the microphone."

   By deciding to hear the Texas case, the Supreme Court has waded into waters which many legal observers consider murky. Appeals courts and District courts have all divided over the prayer issue; some have supported prayer that was, in theory anyway, "nonsectarian and nonproselytizing," while others have ruled that student-led religious invocations are always unconstitutional.

   In SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE, the high court will focus on prayer at the football games; in accepting the case, justices chose to pass on disputes involving public school graduation ceremonies. Even so, a ruling could be used to someday prompt the court to visit that issue.

   Meanwhile, an ABC news poll released today suggests that "Public support for school prayer extends beyond the classroom: Most Americans also say students should be able to lead prayers at after-school activities, such as sporting events." Sixty-seven percent of those responding to the telephone poll said that students should be permitted to lead prayers at after-school events, while twenty-seven percent disagreed. Eighty percent of those who identified themselves as Republicans supported student-led prayer, while fifty-nine percent of Democrats and 61% of Independents favored the practice as well.

   As usual, educational levels seem to influence attitudes about prayer in public.

   "Lower-income and less-educated Americans are more apt to support student-led prayer, so are Southerners and Midwesterners..." noted the ABC poll.

[text only]