The latest round in the perennial legal battle over the separation of church and state ended on June 19, when the U.S. Supreme Court struck down a Texas school district’s policy permitting voluntary, student-initiated public prayers before high school football games. But the litigation over religious expression in public schools is likely to continue. It is a conflict in which two key First Amendment protections—freedom of speech and the prohibition against state establishment of religion—seem to collide. And yet the real paradox, perhaps, is that neither side in this debate wants speech to be really free when it comes to religion.
The Supreme Court case, Santa Fe Independent School District v. Doe, began in 1995, when several families challenged the practice of having a prayer delivered over the school’s public address system at the start of each home varsity football game. The plaintiffs—not atheists but Catholics and Mormons—saw this as part of a general pattern of promotion of a specific brand of Christianity by the schools of the mostly Baptist town. Teachers led prayers before lunch, handed out flyers for revival meetings, and in some cases actively proselytized students of other faiths and disparaged their beliefs.
After the lawsuit was filed, the district took steps to curb these excesses and devised an ostensibly neutral solution to the problem of public prayer at football games: The students would elect a speaker to deliver pre-game remarks—religious or secular—to "solemnize the event." It is this policy that the high court has rejected as thinly disguised public sponsorship of prayer.
In a caustic dissent, Chief Justice William Rehnquist complained that the majority opinion, written by Justice John Paul Stevens, "bristles with hostility to all things religious in public life." Yet Rehnquist conceded that if the disputed policy resulted in prayer, say, 90 percent of the time, it would probably be unconstitutional.
Conservative critics of a strict separation of church and state frame the issue as one of free speech and free exercise of religion. This emphasis is shrewd political strategy—no one wants to admit to being against either freedom—but it also raises a thorny issue. If government schools allow student-initiated religious expression at official school events, are they unconstitutionally promoting religion? If they muzzle such expression, are they unconstitutionally suppressing speech?
Even conservative Pepperdine University law professor Douglas Kmiec, who believes that modern secularism has "perverted" the constitutional ban on an official state religion into a mandate to banish religiosity from the public square, wrote in The Wall Street Journal that, "given the peculiar facts of the case, the Supreme Court may have been right" to strike down the Santa Fe policy. Those facts included the district’s history of practices that were clearly unconstitutional even under the narrowest interpretation of the Establishment Clause. The policy allowing an elected student speaker to deliver an invocation was rather transparently designed as a way to preserve pre-game prayer.
But in other, more complex cases currently moving through the legal system, there is a far stronger claim that absolute separation unfairly singles out religious speech. Take the saga of the brothers Chris and Jason Niemeyer, devout evangelical Christians and successive class valedictorians at Oroville High School in California in 1998 and 1999. The Niemeyers were barred from giving the traditional commencement address to their classmates because they wanted to talk about their faith.
As many schools require, Chris Niemeyer gave the school administrators an advance copy of his speech, which asserted that all people are "God’s children, through Jesus Christ’s death, when we accept his free love and saving grace," and urged listeners to embrace a "personal relationship" with God. The principal told him to tone down the religious message. After an unsuccessful attempt to get a court order securing his right to speak, the boy wanted to make brief remarks at graduation explaining why he couldn’t give a speech. But school officials stopped him on his way to the podium and told him he couldn’t speak at all—a gesture that prompted loud protests from the crowd and nearly sparked a riot.
The following year, Jason Niemeyer submitted a valedictory address that, while less focused on religion, concluded by urging all those present "to take advantage of the friendship that is offered us in Christ." After consulting with attorneys, the school forbade him to give the speech and also nixed a revised version with no direct references to Jesus.
Both of the brothers are suing the school district. So far, the courts have sided with the school, which argues that graduation is an extension of the school curriculum and that, therefore, sectarian commencement messages should not be permitted.
Yet had the brothers been allowed to speak, interpreting their remarks as "establishment of religion" by the state would have been far more of a stretch than in the Texas football case. A valedictorian’s address has a clear secular purpose, and neither boy would have been the sole graduation speaker. It is doubtful that any student in the audience could have perceived a religiously themed valedictory speech as official endorsement of a sectarian creed by the school (any more than Chris Niemeyer’s election as class president in his senior year, at a time when he was also the co-leader of a Christian club at school, amounted to an endorsement of religion).
To remove any shade of suspicion, an administrator could have made a statement that any expressions of religious faith reflected the speakers’ individual beliefs. Indeed, the concern of the officials seems to have been less that some people would feel coerced or discriminated against than that some people would feel uncomfortable.
In a declaration filed in the legal case, Chris Niemeyer’s co- valedictorian, Delisa Freistadt, who is Jewish, stated that she was glad the court didn’t "force" her to listen to his speech. The Niemeyers’ attorneys counter, rather persuasively, that it is part of the American way that we are sometimes forced to listen to speech we don’t like. (Freistadt could have countered speech with more speech and used her time at the podium to talk about respecting religious differences.) As applied in this case so far, the First Amendment seems to be less a guarantee of religious freedom than a speech code guaranteeing that no one’s feelings are hurt.
There may be an anti-religion double standard at work as well. Some of the Niemeyers’ local supporters gripe that the same school officials who muzzled the boys allowed the installation of a Vietnam War mural many people found objectionable. It also seems likely that if a public school had silenced a valedictorian who wanted to praise vegetarianism or assail racism, the mainstream media and the American Civil Liberties Union would have blasted the decision as an outrageous act of censorship.
The ACLU has criticized the free speech defense of student-initiated prayer at graduation, cautioning that such a position would force schools to grant equal access to all speakers of all viewpoints on a first come, first served basis—a less relevant concern when the issue is one of free expression for speakers already chosen on an ideologically neutral basis. It is also worth noting that the Colorado ACLU has championed the right of black students to wear a ceremonial African cloth over their graduation gowns as a protected form of expression.