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Supreme Court Watch

June 19, 2000 at 12:00 AM EDT


GWEN IFILL: For more on the impact of this ruling, we turn to Jay Sekulow, chief counsel for the American Center for Law and Justice; he argued the case for the Santa Fe Independent School District. And Steven Shapiro, national legal director for the American Civil Liberties Union. The ACLU helped represent the students who attacked the school board’s policy.

Mr. Sekulow, the court’s decision, as Jan Crawford Greenburg just told us, basically came down to a question about coercion — whether these students were being coerced to pray or not. Was it right or was it wrong?

JAY SEKULOW: Well, I think the court was wrong. I think the Supreme Court missed an opportunity to clarify an area of law. There’s no doubt this was a close case from the outset. We knew that going into it. The thing that concerns me about the opinion was that it really converts the private speech of a student and makes that person a state actor.

And I think it ends up pointing and allowing for censorship. And this is a case where the only one that’s really being denied the right to speak here is the individual student that’s selected. I think the opinion as the chief Justice stated in dissent bristles with hostility towards religion.

That’s the concern we have, is the impact of it. It was a close case with the election in the way the student was selected — we knew that from the outset — clearly that troubled the majority of the court – there’s no doubt about that. But the idea that that government, now a student becomes a government speaker, that’s a dangerous precedent.

GWEN IFILL: Mr. Shapiro, let’s take all of that one at a time. Let’s start with the idea of coercion and the idea of public versus private speech.

STEVEN SHAPIRO: Well, I think it was coercive for some of the reasons that Jan Greenburg just said, and that is that students in this country should not have to choose between attending a high school football game, which is a large and significant event in the life of many high school students, and being subjected to a religious practice and ritual that they may not share. And I don’t think this case was ever about private speech.

And I think that the fatal flaw in Jay Sekulow’s argument and the obstacle he ran into was that all the Supreme Court Justices had been to high school, and they understood that. The high school never intended to turn over the microphone at the football game to any speaker selected by the student.

This was a policy that admittedly went through some changes during the course of the litigation, but from beginning to end, as the Supreme Court said today, it was designed to promote and encourage prayer at football games. And that’s unconstitutional; it’s unconstitutional for a very, very simple reason: And that is we don’t have election in this country to decide whether, when and how people pray.

GWEN IFILL: So Mr. Sekulow, is that true? Is this a question… he’s going back once again to the point that somehow the school department, the school board imposed its will? The school imposed its will.

JAY SEKULOW: Well, it’s interesting here – the way the policy – and Steve mentioned this correctly — the policy changed over the course of time. The original policy that the school board adopted did have a prayer mandate, if you will.

But after listening to their lawyers, and we didn’t get involved until it was at the Supreme Court, but their lawyers gave them good advice if that’s not constitutional — if you’re going to allow the students to speak, let the student choose what they’re going to say, let that be the student’s choice of the message. So the policy allowed for the student that was selected, if in fact… it was up to the students initially – by the way — whether they were even going to allow someone to speak on their behalf at all. The students could have said no.

GWEN IFILL: Mr. Shapiro argues that was a guise.

JAY SEKULOW: Well, he says it’s a guise, and six justices of the Supreme Court did not like the policies, there’s no doubt about that. But the distinction here was the student was allowed to make the choice of what to say. What’s also interesting here is this policy was never enforced. And the court declared it unconstitutional on its face. What that means is that when you have an election mechanism, there’s no doubt about it, I don’t think there’s any point in mincing words. If there’s an election for the students, that is constitutionally suspect, there’s no doubt about that under this opinion.

GWEN IFILL: Well, according to what Mr. Sekulow says, Mr. Shapiro, the court effectively sanctioned silencing speech.

STEVEN SHAPIRO: I don’t think they sanctioned silencing speech. What the court said was that students do not have the right to use the authority of the state and the mechanisms of the state to impose prayer on other students. And that I think is a very basic constitutional principle that goes to the heart of what the separation of church and state are all about in this country. I mean, one, when you strip away all the legalese, in essence what the establishment clause means is that people should not be made to feel like outsiders in their own community because of their religious beliefs. And that was the consequence of this policy.

Anybody in this community who didn’t share the prevailing religious sentiments of the community was forced to sit through a religious observance and a religious ritual that they did not share or join or choose to participate in. And that is fundamentally wrong, and that is what the Supreme Court said today was fundamentally wrong.

GWEN IFILL: Governor George W. Bush, in responding to this today, said it would have far-reaching implications. What implications does this have? The court has not acted, for instance, on whether valedictory speeches at graduations would be affected by something like this.

JAY SEKULOW: Not yet, and I think Governor Bush was correct in his statement that it has far reaching implications. Number one, it came from Governor Bush’s state. He’s actually filed a brief on our side.

The attorney general of Texas argued with me. I think in his statement, I’m not speaking for the governor, but in talking with the attorney general of Texas, I could tell you the concern is exactly what you said, what about the valedictorian, what about the student who’s selected not based on the vote of popularity of the various student members, but rather the student that is the valedictorian, has the highest GPA, and in her valedictory speech wants to give an acknowledgment to God as giving her a blessing in life or even wants to use Jesus’ name as part of the — say in Jesus’ name as she prays – is that student now subject to censorship based on this opinion? I hope not. I’m sure that Steve Shapiro would think it should be censored, but I think-

GWEN IFILL: Let’s ask him.

JAY SEKULOW: — that’s probably a good idea.

GWEN IFILL: Let’s ask him. Would it – should it be censored?

STEVEN SHAPIRO: Well, I think that’s a harder case and it really very much depends on the fact and the circumstances. And I don’t want to predict how to court would come out or how he would come out on a different case that isn’t now before us.

But the fact of the matter is that one of the things the Supreme Court said today, that I think was very valuable, is that there’s an important constitutional principle here, and we’re going to go beyond form to look at substance — and that when they looked at the history of this case and they looked at the history of the school district and they looked at how this policy evolved, there was no doubt in their mind, just as I suspect there was very little doubt in any of the minds of the people in the Santa Fe Independent School District that this was an effort by the school district, by public officials, to endorse and promote prayer in a public school setting. That is unconstitutional. If that happens at graduation, it’s going to be equally unconstitutional.

GWEN IFILL: Mr. Shapiro, Mr. Sekulow also said, quoting Justice Rehnquist, that this opinion bristles with hostility to all things religious in public life. I would gather you don’t agree with it. But what’s your argument against it.

STEVEN SHAPIRO: I disagree. I disagree completely with that. And the reason that I think this decision is so important today is not because it is hostile to religion, but because it preserves religious liberty. And the way that we preserve religious liberty in this country is by recognizing that religion is a matter of individual choice, not by state coercion and that we protect religion by keeping the government out of it. And that’s what today’s decision is.

JAY SEKULOW: What about the individual choice of that student selected by her peers to give a message, and that student’s choice is a religious message of prayer. The difficulty with the decision today and why I think Governor Bush is concerned about it as well, is that the Supreme Court of the United States, the majority, anyways, has stated we can silence that student because their student might engage in prayer. We’re treating prayer as if it’s pornography.

And that’s not the way the First Amendment’s establishment clause – in my view — was supposed to be applied. I think the court got it wrong today. I think a majority of the Supreme Court was wrong. Does that mean that this issue is over with? Absolutely not. It’s been litigated for 40 years. Jan Greenburg mentioned that. I think it will probably be litigated for another 40.

GWEN IFILL: People often say that there will always be prayer in schools as long as there are exams, right?

JAY SEKULOW: That’s right.

GWEN IFILL: How does this affect an individual student’s rights?

JAY SEKULOW: That’s talk about what’s not at issue. Students have the right to have voluntary prayer and bible club meetings after school or before school or during club time. And they could have prayer meetings then.

The annual see-you-at-the pole event where millions of students gather around a flagpole at the beginning of the school day to pray; that’s constitutionally protected. What’s suspect is prayer at a sporting event. I think a graduation prayer that were to be engaged in at the same policy where you had a vote is problematic under this opinion, but I don’t think the valedictorian issue has been resolved. I agree with Steve on that; that’s going to be another case, a case I hope the ACLU would agree to support the student’s position on, because I think I understood what Steve’s concern was in this case and the ACLU’s concern when they started, but that doesn’t mean I agree with it.

I understood their concern, but the concern that I now have after litigating this case at the Supreme Court and hearing and reading the decision is it does bristle with hostility. The idea that we will now turn a private student speaker into a government actor is just repugnant to the First Amendment, in my view.

GWEN IFILL: Mr. Shapiro.

STEVEN SHAPIRO: Let me just respond to that, if I can, for one second. Justice Stevens and the majority opinion goes out of his way to say that there’s nothing in this opinion that in any way interferes or diminishes the rights of individual students to pray voluntarily in school — to pray before their chemistry exam, to meet with co-religionists and says say grace before a meal in the high school cafeteria. This is not a case about the right of individual students to pray in school.

This is a case about the right of those students to commandeer the authority and machinery of the state to impose that prayer on others who may not share the same religious beliefs. And that is… that is the divide that the Constitution is designed to protect. And I would think that Jay, I will turn the tables here. I would think that Jay would be equally concerned about preserving that constitutional line as a means of preserving religious liberty.

JAY SEKULOW: And I think the constitutional line in this case was preserved when it was the individual student who was selected that was given the choice on what to say that. That was up to the individual student. Now the majority of the court did not agree with me in that position. But it was clear to me that that student was the decision maker. They were the circuit breaker; they were the one who determined what the content would be. And they should have had the right to determine it to be a pray if they so chose.

GWEN IFILL: Two sets of parents brought the case, Catholic and Mormon. And Justice Stevens – in his opinion today — very expressly warned against taking any backlash against either of these two sets of parents. What did that come from? Is that an indication that this case is more about a debate in community than a debate in school?

JAY SEKULOW: I think that is the bristling of hostility that Justice – the Chief Justice was concerned about. It was as if these people in Santa For example, Texas, somehow were not American or they were not patriotic because they had strong views about prayer — Justice Stevens thinks they need this cloak of protection. Let me tell you the reality. The reality is there are Baptists that agree with the position I took. There are Baptists that agree with Steve Shapiro’s position. There are Catholics that agree with my position — I’ve got a number of Catholic lawyers on our staff that agree with our position.

There are Catholics that agree with Steve Shapiro’s position. I don’t think this was as much a religiously divisive issue in the sense of denominational differential as it was an issue of where do we draw the line. These are not easy cases. The line I think was drawn here inappropriately by silencing the student.

GWEN IFILL: Mr. Shapiro, how did you read that?

STEVEN SHAPIRO: I think Jay could not be more wrong. This case proceeded anonymously because the trial… federal trial judge who lived in the community understood the intimidation and harassment that these families faced when they came forward to challenge the prevailing religious views within their community.

And after the trial judge initially allowed them to proceed anonymously, he felt compelled to enter a second order a month later, which was what Justice Stevens cites in his majority opinion, directing school officials not to continue their efforts to try to ferret out, as he said, the identity of these people, because of the fear they would be subject to still further intimidation and harassment. There is something very, very serious about allowing a community to divide itself along religious lines. It’s not only true in Santa Fe, Texas; it’s true if you look around the world. And that is why the framers of the Constitution, wisely in my estimation, understood the importance of keeping church and state separate.

And that is the principle that the Supreme Court acknowledged today. I don’t think the court did anything new today. I think they reaffirmed an historic commitment to separation of church and state that school districts around the country were seeking to circumvent through the mechanism of student elections.

GWEN IFILL: So this debate is not over.

JAY SEKULOW: Clearly not. We’ve got a series of cases in the lower courts already. Steve knows it. There’s a case on the way to the Supreme Court now. There’s a number of them. This issue is not going to be over with. I think it’s going to take different avenues; there will be different fact patterns.

I think the valedictorian issue that we just talked about is going to be the major issue that’s going to be the focus of the debate. Clearly that will go forward. So as I said, this issue has been litigated since the 1960s, and that’s 40 years, and I suspect it will go for another 40 as well.

GWEN IFILL: And we’ll back here to talk about it again. Thank you Jay Sekulow and Steven Shapiro.