MEMORANDUM ON STUDENT RELIGIOUS SPEECH AT ATHLETIC EVENTS The Foundation for Moral Law One Dexter Avenue Montgomery, AL 36104 (334) 262-1245
Let your light so shine before men, that they may see your good works, and glorify your Father which is in heaven. —Matthew 5:16
As in every autumn, Alabamians are caught up in the enthusiasm of the football season. The competing teams, the cheerleaders, the band, the halftime performances, the crisp autumn evenings — it all comes together as a cherished and exciting tradition highlighted by prayer to God for protection of the football players, students, and those travelling to enjoy the event. But in some Alabama schools, one part of that tradition is missing this year—the opening prayer. Several school districts have received letters from a Wisconsin-based group known as the Freedom from Religion Foundation (“FFRF”), an atheist organization whose goal is to drive religious expression out of the public arena. And right now, football stadiums seem to be the focus of their attack. The FFRF insists that prayers at public school football games violate the First Amendment to the U.S. Constitution, which, they claim, mandates “separation of church and state” but actually reads as follows: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The Establishment Clause does not mandate complete separation of religion from government nor does it prohibit the public acknowledgement of God. But does the Establishment Clause prohibit prayer at football games? Let’s examine it more closely.
I. Analysis of Court Decisions Concerning Prayer at Athletic Events
The meaning of the First Amendment is of crucial importance. Those who settled the original thirteen colonies did not cross the Atlantic to get away from prayer at football
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games. In 1853 the U.S. Senate Judiciary Committee conducted an exhaustive study of the Establishment Clause and concluded that it referred to “the connection with the state of a particular religious society, by its endowment, at the public expense, in exclusion of, or in preference to, any other, by giving to its members exclusive political rights, and by compelling the attendance of those who rejected its communion upon its worship, or religious observances.” Nonetheless, by preventing the government from sponsoring one church
to the detriment of all others, the Founders did not wish “to see us an irreligious people.”
They did not intend to prohibit a just expression of religious devotion by the legislators of the nation, even in their public character as legislators; they did not intend to send our armies and navies forth to do battle for their country without any national recognition of that God on whom success or failure depends; they did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of “atheistical apathy.”
Not so had the battles of the revolution been fought, and the deliberations of the revolutionary Congress conducted. On the contrary, all had been done with a continual appeal to the Supreme Ruler of the world, and an habitual reliance upon His protection of the righteous cause which they commended to His care.
The Reports of Committees of the Senate of the United States for the Second Session of the Thirty-Second Congress
, 1852-53, pp. 1-4. Senate Rep. No. 32-376 (1853). (Emphasis added). Christians who support public prayer do not consider such prayer to be a mere ritual or ceremony. Rather, they believe that “prayer changes things.” Just as prayer for our troops helps ensure success and safety in battle, so prayer for athletes helps ensure that they will play their best, practice good sportsmanship, and be free from injury.
Unlike the FFRF, the Foundation for Moral Law believes that student-initiated prayer at football games, even over the PA system, does not violate the Establishment Clause and is protected by the Free Exercise Clause and the Free Speech Clause of the First Amendment and by the Alabama Religious Freedom Amendment. The complete ban on prayer demanded by the FFRF would, in the Senate Committees’ words, “spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of ‘atheistical apathy.’” Contrary to the FFRF’s one-sided and simplistic analysis, the Supreme Court’s decision in
Santa Fe Independent School District v. Doe,
530 U.S. 290 (2000), did not invalidate student-initiated prayer at athletic events. Rather, the Court focused on the extensive state involvement in the prayers.
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The Court distinguished between government-sponsored prayers and student-initiated religious speech, noting that “there is a crucial difference between
government
speech endorsing religion, which the Establishment Clause forbids, and
private
speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”
Id.
at 302 (citation omitted). Where the message is the student’s and not the school’s, the Establishment Clause has no application, and the Free Exercise and Free Speech clauses control. A school-district policy which permitted a student message at the opening of a football game without prescribing the content of that message would be wholly constitutional. A recent well-reasoned appellate case from Texas upheld the practice of allowing football cheerleaders to paint messages on run-through banners, some of which contained Bible verses, on the ground that the message was that of the students, not the school.
Kountze Independent School District v. Matthews
, No. 09-13-251 (Tex. App. Sept. 28, 2017).
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The FFRF’s references to other Supreme Court decisions are equally simplistic and overbroad.
Lee v. Weisman,
505 U.S. 577 (1992), did not invalidate all graduation prayers, only a specific situation in which a superintendent asked a rabbi to lead a prayer and gave him written guidelines as to what the prayer should include. Justice Souter, joined by two other
Justices, stated in a concurring opinion: “If the State had chosen its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had individually chosen to deliver a religious message, it would have been harder to attribute an endorsement of religion to the State.”
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Id.
at 630 n.8. Even
Engel v. Vitale,
370 U.S. 421 (1962), which held that the state could not compose an official prayer to be recited in every classroom, did not ban student-initiated prayer. In a concurring opinion in
Engel
, Justice William O. Douglas noted that the Supreme Court opened its sessions with the prayer: “God save the United States and this Honorable Court.” Certainly, if the United States Supreme Court can open its sessions with prayer, students in public schools can invoke God’s blessing on a football game. After the
Santa Fe
decision, the United States Court of Appeals for the Eleventh Circuit (which includes Alabama) considered two cases involving religious speech in a
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Schools may prohibit students from engaging in “vulgar and lewd speech” or advocating illegal activity without converting the student speech into the school’s message.
Bethel School Dist. No. 403 v. Fraser
, 478 U.S. 675, 683 (1986);
Morse v. Frederick
, 551 U.S. 393, 397 (2007).
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Justice Scalia, joined by three other Justices, identified a solution to the problem: “All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation program, to the effect that, while all are asked to rise for the invocation and benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. That obvious fact recited, the graduates and their parents may proceed to thank God, as Americans have always done, for the blessings He has generously bestowed on them and on their country.” 505 U.S. at 645 (Scalia, J., dissenting).