One tactic used by conservative Christians to introduce more official prayers into schools is to get students to vote on prayers. In communities where one sort of Christianity dominates, the outcome of voting can be predicted and defended as the "private" speech of students. Courts, though, have ruled that prayers done on under the auspices of government supervision, with government approval, and with government equipment, is effectively government speech and thus must be restricted.
Background Information
Before 1995, a student elected as Santa Fe High School's student council chaplain delivered a prayer over the public address system before each home varsity football game. Mormon and Catholic students (or alumni) and their mothers challenged the prayers as violations of the First Amendment. While their lawsuit was pending, the school created a new policy authorizing two student elections: one on whether "invocations" should be delivered at games and a second to select a spokesperson to deliver them (if the first election turned out favorable to invocations).
After an election authorizing prayers and selecting someone to deliver them, the District Court ordered a modification of the policy to permit only nonsectarian, nonproselytizing prayer. The Fifth Circuit Court, however, ruled the football prayer policy invalid even with the modification.
Court Decision
With Justice Stephens writing the majority opinion, the Supreme Court ruled 6-3 that the school’s policy authorizing student-led, student-initiated prayer at football games violates the Establishment Clause. The justices relied heavily on Lee v. Weisman:
The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which `establishes a [state] religion or religious faith, or tends to do so.'
The school argued that these principles were not relevant because the messages were private student speech, not public speech. The Court disagreed, holding that the delivery of a message on school property, at school-sponsored events, over the school's public address system, by a speaker representing the student body, under the supervision of faculty, and following school policies which encourage public prayer could not justifiably be called private speech.
Also important that the delivery of the prayer did not occur at a public forum where all manner of opinions are permitted:
The District simply does not evince an intent to open its ceremony to indiscriminate use by the student body generally, but, rather, allows only one student, the same student for the entire season, to give the invocation, which is subject to particular regulations that confine the content and topic of the student's message. The majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced.
The Supreme Court rejected the claim that the policy was different from the graduation prayer in Lee because it did not coerce students to participate in religious observances. The Court pointed out that one of the Establishment Clause's purposes is to remove debate over this kind of issue from governmental supervision or control. The election turned the school into a forum for religious debate. It unjustifiably empowered a majority to subject students of minority views to constitutionally improper messages.
The Court noted that the policy did have an element of coercion: some students, like cheerleaders, members of the band, and the team members themselves, are required to be at football games. There is also great social pressure on students to be involved in activities like football. According to the Court, schools should not force students to choose between attending these games or "risk facing a personally offensive religious ritual."
School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherants that they are outsiders, not full members of the political community, and an accompanying message to adherants that they are insiders, favored members of the political community.
The dissent by Rhenquist, Scalia, and Thomas argued:
...even more disturbing than its holding is the tone of the Court's opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."
It is unclear why prohibiting students from voting on having religious rituals and then using school equipment to deliver said rituals to students — some of whom are forced to be there — is "hostile" to religion.
Significance
This decision reaffirmed a long-running tradition at the court to strike down laws and policies which place students in an environment where they are forced to listen to the promotion of a particular, sectarian religious message. The Court made it clear that religion could not be used by the government to divide the community of students by making some of them feel like insiders and others feel like outsiders. It is because of this that religion has so often divided nations, and it was this which the authors of the Constitution wished to avoid.
In this decision, the majority of justices supported the principle that a neutral, secular government is necessary for the political inclusion of all citizens.
