MARIAN WARD: Lord, thank you for this evening. Thank you for all the prayers that were lifted up this week for me.
MARGARET WARNER: Organized school prayer has been banned in public schools since 1962. But in 1995, Santa Fe, Texas, school officials decided to let students elect a fellow student to offer a prayer before high school football games, like this one offered by Marian Ward last fall.
MARIAN WARD: In Jesus' name, amen.
MARGARET WARNER: The Supreme Court had ruled in 1992 that clergy-led prayer before public school graduations violated the constitutional separation of church and state. But the Santa Fe, Texas, school board argued the situation was different if the occasion were a football game, and if students initiated the prayer. Some parents felt otherwise, and challenged the policy.
PARENT: I do not believe there should be prayer before the football game. There is a place and time for prayer. And I don't believe it should be before a game. They may pray silently if they like, but for a public announcement... I don't agree with it.
MARGARET WARNER: But other parents, students, and the school superintendent disagreed.
RICHARD OWNBY, Superintended, Santa Fe, Texas School District: Football and invocations have always gone together, just like saying the Pledge of Allegiance and the National Anthem. It is just a way of life. We don't want to give it up.
MARGARET WARNER: But today the Supreme Court ruled that they have to give it up. For more on the 6-3 ruling, we turn to NewsHour regular Jan Crawford Greenburg, national legal affairs correspondent for the "Chicago Tribune." So Jan, explain the basis on which this six-Justice majority struck down this pre-game prayer policy.
JAN CRAWFORD GREENBURG: The Justices said that the policy violated the Constitution's establishment clause, which is found in the First Amendment, and as you know, it prohibits government from establishing a religion. And even though the school district had argued that this prayer was led by students, that it wasn't public speech, the court today said, no, this is essentially government speech, and it coerces non-believes to participate. For those reasons, the Justices said the policy must fail.
MARGARET WARNER: Now, what were the things the court pointed to to say, this isn't private speech, as you say, the school board had argued, this is really school-sponsored, school-sanctioned, school-encouraged prayer?
JAN CRAWFORD GREENBURG: Right. And that was one of first parts of the school district's argument. The court rejected that. They said, look, this speech is shaped by the school's policy, which requires the speech to solemnize the event. It's delivered over the school's public address system, at a school-sponsored event on school property, and furthermore, this system in which the students select the speaker who will give the prayer is further evidence that it's government, essentially government speech, because the way the school system set up this policy was that the students, it said, and this was one reason why it wasn't bad under the Constitution, was that the students would pick the speaker, and the students would decide if they wanted prayer at all.
But the Justices said, that's terrible because what the policy has done is injected the religious debate into the public schools. You have students voting on whether or not they're going to have prayer and the kind of student who is going to give the prayer. Now that aspect of the district's policy greatly troubled some of the Justices at the oral arguments, the Justices who are typically considered the swing votes, Justices Sandra Day O'Connor and Anthony Kennedy. And they were on board today with the ruling that that struck down the policy.
MARGARET WARNER: So in other words, they had expressed their concern about this election process, which, as you say, in the very campaign for who they will vote for and whether to have it would inject religion as a topic of a school election.
JAN CRAWFORD GREENBURG: That's right.
MARGARET WARNER: Now, the other point you made and the Justices made was that, in fact, this was coercive of students who might not share the sort of prevailing Christian faith of the community. What did they point to there?
JAN CRAWFORD GREENBURG: The school district made two points there. They said... They again pointed to the election as reasons why this policy should fly, and the court said no, we're going to reject. That we're not going to get into that again. But the school district said that football games are voluntary. They're not like graduations where you really have to go. And - you know -- students don't have to go if they don't want to, so no one is being coerced to pray. But in the opinion by Justice John Paul Stevens, the court rejected that argument. Justice Stevens referred to the great extracurricular event that is American high school football, a function that brings members of the community together to cheer for a common cause, and furthermore, it said that simply because attendance was voluntary, students may have a great desire to attend that function.
MARGARET WARNER: A lot of social pressure, too.
JAN CRAWFORD GREENBURG: Exactly, exactly. So that argument that students don't have to go to a game could not be a reason to sustain this policies, as well.
MARGARET WARNER: All right. Now, Justice Rehnquist led the three-judge dissent. What was their argument?
JAN CRAWFORD GREENBURG: Again, I mean, the... In many way, this issue has deeply divide society, and today it deeply divided the Justices. The dissenters in strong language led by Chief Justice Rehnquist said that the majority was essentially exercising hostility toward religion, and it accused the majority of jumping the gun and striking this program, this policy down too soon.
MARGARET WARNER: You mean, even though we did see a student leading the prayer, I gather in the record before the court, that particular election process and that particular student, it wasn't really part of the record, so what Rehnquist was saying, you haven't given this time to breath and to be carried out before you strike this down?
JAN CRAWFORD GREENBURG: That's right. And the court in its majority opinion struck down this policy on its face. It said, it cannot the applied in a constitutional way. Now, the policy itself technically had never been applied. The parents had sued under another policy, the district modified it later: And so Rehnquist's point was let's wait and see. Maybe this can be applied in a constitutional way.
MARGARET WARNER: Did he deal head on with the issue of whether it could be applied constitutionally, though, or...
JAN CRAWFORD GREENBURG: No. He suggested that, you know, there are... you want to talk about solemnizing this event, well, there are certainly ways that students could solemnize a football game without getting into a religious message. They might say, let's be good sports about it and promote sportsmanship. So he thought the court was really just acting much too quickly, and the opinion is a very pointed dissent, and I think it reflects some of the strong divisive debates that we've seen in state legislatures, in Congress, between parents, as we saw in the setup piece on this incredibly volatile issue.
MARGARET WARNER: It was interesting in reading the parts of the opinion that I read, that the school board had taken a look at that case, and you talked about this earlier when you discussed this case the first time it appeared, that there had been an earlier case striking down a clergy-led prayer at a graduation: And it looks like the Texas school board said, okay, it wouldn't be clergy led and it won't be at a sort of an obligatory event and we can skirt around this. But, in fact, the advocates of religious observances at school events haven't had a good track record with the Supreme Court for - what -- 40 years.
JAN CRAWFORD GREENBURG: Well, about 40 years ago is when the court said no official government prayer is allowed. And at least in terms of government-sponsored prayer, the Court has been print pretty consistent. It said Kentucky couldn't have the Ten Commandments in every classroom. It's invalidated a moment of silence that encouraged students to pray in Alabama in 1985, and in '92, the case that we just talked about, it said that clergy led prayer at graduations was unconstitutional. And, as you said, school districts tried to get around that 1992 ruling by turning to students to give the prayers. Now, the ruling today, and certainly some appeals courts have allowed those student-led prayers at graduations.
Now, it's unclear what impact today's ruling will have, you know, beyond the football field and if those prayers also are unconstitutional. Certainly you're going to get arguments on both sides. And certainly if they have this kind of election scheme, people would say that's a pretty good argument against them. But that remains to be seen.
MARGARET WARNER: All right, well, Jan, thanks very much.