Issue 78, Summer 2000

Student-led prayers at football games provided the latest opportunity for the Supreme Court to address religious speech and church-state issues. The case was brought by families of Catholic and Mormon students in the Santa Fe, Texas, schools. In a 6-3 decision, the Court held that the pre-game prayers crossed the constitutional line because of the “perceived and actual endorsement of religion” by the school district. Justice John Paul Stevens, writing for the majority, cited the district’s process of electing a student to lead the prayer as a guarantee that “minority candidates will never prevail and that their views will be effectively silenced … School sponsorship of a religious message is impermissible,” Stevens wrote, “because it sends the ancillary message to…nonadherents, that they are outsiders, not full members of the political community.”

Chief Justice Rehnquist, joined by Justices Thomas and Scalia, dissented, writing that the decision “bristles with hostility to all things religious in public life.”

Justice Stevens disagreed. “By no means,” he said, does the Constitution “impose a prohibition on all religious activity in our public schools” or stop “any public school student from voluntarily praying at any time before, during, or after the school day. But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.” The implications of this decision for student-led prayer at graduation and school assemblies are at issue in other cases remanded to lower courts for reconsideration.

The Court balanced free speech with other important values in these other cases:

  • In a decision pitting gay rights against associational rights, the Court held, 5-4, that the Boy Scouts were entitled to exclude an openly gay scout leader. His “forced inclusion,” the Court said, would “materially interfere with the ideas that the organization sought to express.” The dissenters noted the compelling interest in eliminating discrimination, and questioned whether the Scouts’ message was undermined by someone who had done nothing more than identify himself as gay: “His openness is the sole and sufficient justification for his ostracism. [This] is tantamount to a constitutionally prescribed symbol of inferiority.”
  • In the on-going effort to balance the right of abortion protesters with the right of clinic access, the Court upheld a Colorado statute which prohibits protesters from coming within eight feet of individuals entering health care facilities without their consent. Balancing the free speech rights of protesters and the “privacy interest in avoiding unwanted communication,” the Court held, 6-3, that the Colorado statute was a reasonable time, place and manner restriction that protected the “right to be let alone” without unduly burdening the right of protesters to have their message heard.