OCTOBER TERM, 1999
Syllabus
SANTA FE INDEPENDENT SCHOOL DISTRICT
v.
DOE, INDIVIDUALLY AND AS NEXT FRIEND FOR HER MINOR CHILDREN, ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 99-62. Argued March 29, 2000-Decided June 19,2000
Prior to 1995, a student elected as Santa Fe High School's
student council chaplain delivered a prayer over the public address
system before each home varsity football game. Respondents, Mormon
and Catholic students or alumni and their mothers, filed a suit
challenging this practice and others under the Establishment Clause
of the First Amendment. While the suit was pending, petitioner
school district (District) adopted a different policy, which
authorizes two student elections, the first to determine whether
"invocations" should be delivered at games, and the second to
select the spokesperson to deliver them. After the students held
elections authorizing such prayers and selecting a spokesperson,
the District Court entered an order modifying the policy to permit
only nonsectarian, nonproselytizing prayer. The Fifth Circuit held
that, even as modified by the District Court, the football prayer
policy was invalid.
Held: The District's policy permitting student-led,
student-initiated prayer at football games violates the
Establishment Clause. Pp.301-317.
(a) The Court's analysis is guided by the principles endorsed in
Lee v.
Weisman, 505 U. S. 577. There, in
concluding that a prayer delivered by a rabbi at a graduation
ceremony violated the Establishment Clause, the Court held that, at
a minimum, the Constitution guarantees that government may not
coerce anyone to support or participate in religion or its
exercise, or otherwise act in a way that establishes a state
religion or religious faith, or tends to do so,
id., at 587.
The District argues unpersuasively that these principles are
inapplicable because the policy's messages are private student
speech, not public speech. The delivery of a message such as the
invocation here-on school property, at school-sponsored events,
over the school's public address system, by a speaker representing
the student body, under the supervision of school faculty, and
pursuant to a school policy that explicitly and implicitly
encourages public prayer-is not properly characterized as "private"
speech. Although the District relies heavily on this Court's cases
addressing public forums,
e. g., Rosenberger v.
Rector
and Visitors of Univ. of Va., 515 U. S. 819, it is
clear that the District's
291
pregame ceremony is not the type of forum discussed in such
cases. The District simply does not evince an intent to open its
ceremony to indiscriminate use by the student body generally, see,
e. g., Hazelwood School Dist. v.
Kuhlmeier, 484 U. S. 260, 270, but,
rather, allows only one student, the same student for the entire
season, to give the invocation, which is subject to particular
regulations that confine the content and topic of the student's
message. The majoritarian process implemented by the District
guarantees, by definition, that minority candidates will never
prevail and that their views will be effectively silenced. See
Board of Regents of Univ. of Wis. System v.
Southworth, 529 U. S. 217, 235.
Moreover, the District has failed to divorce itself from the
invocations' religious content. The policy involves both perceived
and actual endorsement of religion, see
Lee, 505 U. S., at
590, declaring that the student elections take place because the
District "has chosen to permit" student-delivered invocations, that
the invocation "shall" be conducted "by the high school student
council" "[u]pon advice and direction of the high school
principal," and that it must be consistent with the policy's goals,
which include "solemniz[ing] the event." A religious message is the
most obvious method of solemnizing an event. Indeed, the only type
of message expressly endorsed in the policy is an "invocation," a
term which primarily describes an appeal for divine assistance and,
as used in the past at Santa Fe High School, has always entailed a
focused religious message. A conclusion that the message is not
"private speech" is also established by factors beyond the policy's
text, including the official setting in which the invocation is
delivered, see,
e. g., Wallace v.
Jaffree, 472 U. S. 38, 73, 76, by
the policy's sham secular purposes, see
id., at 75, and by
its history, which indicates that the District intended to preserve
its long-sanctioned practice of prayer before football games, see
Lee, 505 U. S., at 596. Pp. 301-310.
(b) The Court rejects the District's argument that its policy is
distinguishable from the graduation prayer in
Lee because it
does not coerce students to participate in religious observances.
The first part of this argument-that there is no impermissible
government coercion because the pregame messages are the product of
student choices-fails for the reasons discussed above explaining
why the mechanism of the dual elections and student speaker do not
turn public speech into private speech. The issue resolved in the
first election was whether a student would deliver prayer at
varsity football games, and the controversy in this case
demonstrates that the students' views are not unanimous on that
issue. One of the Establishment Clause's purposes is to remove
debate over this kind of issue from governmental supervision or
control. See
Lee, 505 U. S., at 589. Although the ultimate
choice of student speaker is attributable to the students, the
District's de-
292
cision to hold the constitutionally problematic election is
clearly a choice attributable to the State,
id., at 587. The
second part of the District's argument-that there is no coercion
here because attendance at an extracurricular event, unlike a
graduation ceremony, is voluntary-is unpersuasive. For some
students, such as cheerleaders, members of the band, and the team
members themselves, attendance at football games is mandated,
sometimes for class credit. The District's argument also minimizes
the immense social pressure, or truly genuine desire, felt by many
students to be involved in the extracurricular event that is
American high school football.
Id., at 593. The Constitution
demands that schools not force on students the difficult choice
between attending these games and avoiding personally offensive
religious rituals. See
id., at 596. Pp. 310-313.
(c) The Court also rejects the District's argument that
respondents' facial challenge to the policy necessarily must fail
because it is premature: No invocation has as yet been delivered
under the policy. This argument assumes that the Court is concerned
only with the serious constitutional injury that occurs when a
student is forced to participate in an act of religious worship
because she chooses to attend a school event. But the Constitution
also requires that the Court keep in mind the myriad, subtle ways
in which Establishment Clause values can be eroded,
Lynch v.
Donnelly, 465
U. S. 668, 694, and guard against other different, yet equally
important, constitutional injuries. One is the mere passage by the
District of a policy that has the purpose and perception of
government establishment of religion. See,
e. g., Bowen v.
Kendrick, 487
U. S. 589, 602;
Lemon v.
Kurtzman, 403 U. S. 602, 612. As
discussed above, the policy's text and the circumstances
surrounding its enactment reveal that it has such a purpose.
Another constitutional violation warranting the Court's attention
is the District's implementation of an electoral process that
subjects the issue of prayer to a majoritarian vote. Through its
election scheme, the District has established a governmental
mechanism that turns the school into a forum for religious debate
and empowers the student body majority to subject students of
minority views to constitutionally improper messages. The award of
that power alone is not acceptable. Cf.
Board of Regents of
Univ. of Wis. System v.
Southworth, 529 U. S. 217. For the
foregoing reasons, the policy is invalid on its face. Pp.
313-317.
168 F.3d
806, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined.
REHNQUIST,
293
C. J., filed a dissenting opinion, in which SCALIA and THOMAS,
JJ., joined,
post, p. 318.
Jay Alan Sekulow argued the cause for petitioner. With him on
the briefs were Colby M. May, James M. Henderson, Sr., Mark N.
Troobnick, Walter M. Weber, Paul D. Clement, John G. Stepanovich,
Thomas P. Monaghan, Stuart
J. Roth, John P. Tuskey, Joel H.
Thornton, David A. Cortman, and Kelly Shackelford.
John Cornyn, Attorney General of Texas, argued the cause
for the State of Texas et al. as
amici curiae urging
reversal. With him on the brief were
Andy Tay lor, First
Assistant Attorney General,
Linda S.
Eads, Deputy
Attorney General,
Gregory S.
Coleman, Solicitor
General,
Julie Caruthers Parsley, Deputy Solicitor General,
and
Meredith B. Parenti, Assistant Solicitor General.
Anthony P. Griffin argued the cause for respondents.
With him on the briefs were Douglas Laycock and Steven R.
Shapiro.
*
*Briefs of
amici curiae urging reversal were filed for
the Christian Legal Society by
Steffen N Johnson, Stephen M.
Shapiro, Michael W McConnell, and
Kimberlee W Colby; for
Liberty Counsel et al. by
Mathew D. Staver and
Jerry
Falwell, Jr.; for the Northstar Legal Center by
Jordan W
Lorence; for Spearman Independent School District et al. by
Roger D. Hepworth; for the Texas Association of School
Boards Legal Assistance Fund by
David M. Feldman and
Myra C.
Schexnayder; for the Texas Justice Foundation
et al. by
Linda L. Schlueter; for Senator James M. Inhofe et
al. by
Barry C.
Hodge; for Congressman Steve Largent
et al. by
Brett M. Kavanaugh; for Marian Ward et al. by
Kelly J. Coghlan; and for Texas Public School
Students et al. by
John L. Carter.
Briefs of
amici curiae urging affirmance were filed for
the American Jewish Congress et al. by
Walter E. Dellinger
and
Marc D. Stern; and for the Baptist Joint Committee on
Public Affairs et al. by
Derek H. Davis and
Melissa
Rogers.
Briefs of
amici curiae were filed for the Rutherford
Institute by
John W Whitehead, Steven H. Aden, and
James
A. Hayes, Jr.; and for the Student Press Law Center by
Richard A. Simpson and S.
Mark Goodman.
294
JUSTICE STEVENS delivered the opinion of the Court. Prior to
1995, the Santa Fe High School student who occupied the school's
elective office of student council chaplain delivered a prayer over
the public address system before each varsity football game for the
entire season. This practice, along with others, was challenged in
District Court as a violation of the Establishment Clause of the
First Amendment. While these proceedings were pending in the
District Court, the school district adopted a different policy that
permits, but does not require, prayer initiated and led by a
student at all home games. The District Court entered an order
modifying that policy to permit only nonsectarian, nonproselytizing
prayer. The Court of Appeals held that, even as modified by the
District Court, the football prayer policy was invalid. We granted
the school district's petition for certiorari to review that
holding.
I
The Santa Fe Independent School District (District) is a
political subdivision of the State of Texas, responsible for the
education of more than 4,000 students in a small community in the
southern part of the State. The District includes the Santa Fe High
School, two primary schools, an intermediate school and the junior
high school. Respondents are two sets of current or former students
and their respective mothers. One family is Mormon and the other is
Catholic. The District Court permitted respondents (Does) to
litigate anonymously to protect them from intimidation or
harassment.1
1 A decision, the Fifth Circuit Court of Appeals noted, that
many District officials "apparently neither agreed with nor
particularly respected."
168 F.3d
806, 809, n. 1
(CA5 1999). About a month after the
complaint was filed, the District Court entered an order that
provided, in part: "[A]ny further attempt on the part of District
or school administration, officials, counsellors, teachers,
employees or servants of the School District, parents, students or
anyone else, overtly or covertly to ferret out the identities of
the Plaintiffs in this cause, by means of bogus petitions,
questionnaires, individual interrogation, or downright 'snooping',
will
295
Respondents commenced this action in April 1995 and moved for a
temporary restraining order to prevent the District from violating
the Establishment Clause at the imminent graduation exercises. In
their complaint the Does alleged that the District had engaged in
several proselytizing practices, such as promoting attendance at a
Baptist revival meeting, encouraging membership in religious clubs,
chastising children who held minority religious beliefs, and
distributing Gideon Bibles on school premises. They also alleged
that the District allowed students to read Christian invocations
and benedictions from the stage at graduation ceremonies,2 and to
deliver overtly Christian prayers over the public address system at
home football games.
On May 10, 1995, the District Court entered an interim order
addressing a number of different issues.3 With re-
cease immediately. ANYONE TAKING ANY ACTION ON SCHOOL PROPERTY,
DURING SCHOOL HOURS, OR WITH SCHOOL RESOURCES OR APPROVAL FOR
PURPOSES OF ATTEMPTING TO ELICIT THE NAMES OR IDENTITIES OF THE
PLAINTIFFS IN THIS CAUSE OF ACTION, BY OR ON BEHALF OF ANY OF THESE
INDIVIDUALS, WILL FACE THE HARSHEST POSSIBLE CONTEMPT SANCTIONS
FROM THIS COURT, AND MAY ADDITIONALLY FACE CRIMINAL LIABILITY. The
Court wants these proceedings addressed on their merits, and not on
the basis of intimidation or harassment of the participants on
either side." App. 34-35.
2 At the 1994 graduation ceremony the senior class president
delivered this invocation:
"Please bow your heads.
"Dear heavenly Father, thank you for allowing us to gather here
safely tonight. We thank you for the wonderful year you have
allowed us to spend together as students of Santa Fe. We thank you
for our teachers who have devoted many hours to each of us. Thank
you, Lord, for our parents and may each one receive the special
blessing. We pray also for a blessing and guidance as each student
moves forward in the future. Lord, bless this ceremony and give us
all a safe journey home. In Jesus' name we pray."
Id., at
19.
3 For example, it prohibited school officials from endorsing or
participating in the baccalaureate ceremony sponsored by the Santa
Fe Ministerial Alliance, and ordered the District to establish
policies to deal with
296
spect to the impending graduation, the order provided that
"non-denominational prayer" consisting of "an invocation and/or
benediction" could be presented by a senior student or students
selected by members of the graduating class. The text of the prayer
was to be determined by the students, without scrutiny or
preapproval by school officials. References to particular religious
figures "such as Mohammed, Jesus, Buddha, or the like" would be
permitted "as long as the general thrust of the prayer is
non-proselytizing." App.32.
In response to that portion of the order, the District adopted a
series of policies over several months dealing with prayer at
school functions. The policies enacted in May and July for
graduation ceremonies provided the format for the August and
October policies for football games. The May policy provided:
"'The board has chosen to permit the graduating senior class,
with the advice and counsel of the senior class principal or
designee, to elect by secret ballot to choose whether an invocation
and benediction shall be part of the graduation exercise. If so
chosen the class shall elect by secret ballot, from a list of
student volunteers, students to deliver nonsectarian,
nonproselytizing invocations and benedictions for the purpose of
solemnizing
"manifest First Amendment infractions of teachers, counsellors,
or other District or school officials or personnel, such as
ridiculing, berating or holding up for inappropriate scrutiny or
examination the beliefs of any individual students. Similarly, the
School District will establish or clarify existing procedures for
excluding overt or covert sectarian and proselytizing religious
teaching, such as the use of blatantly denominational religious
terms in spelling lessons, denominational religious songs and poems
in English or choir classes, denominational religious stories and
parables in grammar lessons and the like, while at the same time
allowing for frank and open discussion of moral, religious, and
societal views and beliefs, which are non-denominational and
non-judgmental."
Id., at 34.
297
their graduation ceremonies.'" 168 F.3d
806, 811 (CAS 1999) (emphasis deleted).
The parties stipulated that after this policy was adopted, "the
senior class held an election to determine whether to have an
invocation and benediction at the commencement [and that the] class
voted, by secret ballot, to include prayer at the high school
graduation." App. 52. In a second vote the class elected two
seniors to deliver the invocation and benediction.4
In July, the District enacted another policy eliminating the
requirement that invocations and benedictions be "nonsectarian and
nonproselytising," but also providing that if the District were to
be enjoined from enforcing that policy, the May policy would
automatically become effective.
The August policy, which was titled "Prayer at Football Games,"
was similar to the July policy for graduations. It also authorized
two student elections, the first to determine whether "invocations"
should be delivered, and the second to select the spokesperson to
deliver them. Like the July policy, it contained two parts, an
initial statement that omitted any requirement that the content of
the invocation be "nonsectarian and nonproselytising," and a
fallback provision that automatically added that limitation if the
preferred policy should be enjoined. On August 31, 1995, according
to the parties' stipulation: "[T]he district's high school students
voted to determine whether a student would deliver prayer at
varsity football games .... The students chose to allow a
4 The student giving the invocation thanked the Lord for keeping
the class safe through 12 years of school and for gracing their
lives with two special people and closed: "Lord, we ask that You
keep Your hand upon us during this ceremony and to help us keep You
in our hearts through the rest of our lives. In God's name we pray.
Amen."
Id., at 53. The student benediction was similar in
content and closed: "Lord, we ask for Your protection as we depart
to our next destination and watch over us as we go our separate
ways. Grant each of us a safe trip and keep us secure throughout
the night. In Your name we pray. Amen."
Id., at 54.
298
student to say a prayer at football games."
Id., at 65. A
week later, in a separate election, they selected a student "to
deliver the prayer at varsity football games."
Id., at
66.
The final policy (October policy) is essentially the same as the
August policy, though it omits the word "prayer" from its title,
and refers to "messages" and "statements" as well as "invocations."
5 It is the validity of that policy that is before us.6
5 Despite these changes, the school did not conduct another
election, under the October policy, to supersede the results of the
August policy election.
6 It provides:
"STUDENT ACTIVITIES:
"PRE-GAME CEREMONIES AT FOOTBALL GAMES
"The board has chosen to permit students to deliver a brief
invocation and/or message to be delivered during the pre-game
ceremonies of home varsity football games to solemnize the event,
to promote good sportsmanship and student safety, and to establish
the appropriate environment for the competition.
"Upon advice and direction of the high school principal, each
spring, the high school student council shall conduct an election,
by the high school student body, by secret ballot, to determine
whether such a statement or invocation will be a part of the
pre-game ceremonies and if so, shall elect a student, from a list
of student volunteers, to deliver the statement or invocation. The
student volunteer who is selected by his or her classmates may
decide what message and/or invocation to deliver, consistent with
the goals and purposes of this policy.
"If the District is enjoined by a court order from the
enforcement of this policy, then and only then will the following
policy automatically become the applicable policy of the school
district.
"The board has chosen to permit students to deliver a brief
invocation and/or message to be delivered during the pre-game
ceremonies of home varsity football games to solemnize the event,
to promote good sportsmanship and student safety, and to establish
the appropriate environment for the competition.
"Upon advice and direction of the high school principal, each
spring, the high school student council shall conduct an election,
by the high school student body, by secret ballot, to determine
whether such a mes-
299
The District Court did enter an order precluding enforcement of
the first, open-ended policy. Relying on our decision in
Lee
v.
Weisman, 505 U. S. 577 (1992), it
held that the school's "action must not 'coerce anyone to support
or participate in' a religious exercise." App. to Pet. for Cert.
E7. Applying that test, it concluded that the graduation prayers
appealed "to distinctively Christian beliefs," 7 and that
delivering a prayer "over the school's public address system prior
to each football and baseball game coerces student participation in
religious events."8 Both parties appealed, the District contending
that the enjoined portion of the October policy was permissible and
the Does contending that both alternatives violated the
Establishment Clause. The Court of Appeals majority agreed with the
Does.
The decision of the Court of Appeals followed Fifth Circuit
precedent that had announced two rules. In
Jones v.
Clear
Creek Independent School Dist., 977 F.2d
963 (1992), that court held that student-led prayer that was
approved by a vote of the students and was nonsectarian and
nonproselytizing was permissible at high school graduation
ceremonies. On the other hand, in later cases the Fifth Circuit
made it clear that the
Clear Creek rule applied only to high
school
sage or invocation will be a part of the pre-game ceremonies and
if so, shall elect a student, from a list of student volunteers, to
deliver the statement or invocation. The student volunteer who is
selected by his or her classmates may decide what statement or
invocation to deliver, consistent with the goals and purposes of
this policy. Any message and/or invocation delivered by a student
must be nonsectarian and nonproselytizing."
Id., at
104-105.
7 "The graduation prayers at issue in the instant case, in
contrast, are infused with explicit references to Jesus Christ and
otherwise appeal to distinctively Christian beliefs. The Court
accordingly finds that use of these prayers during graduation
ceremonies, considered in light of the overall manner in which they
were delivered, violated the Establishment Clause." App. to Pet.
for Cert. E8.
8Id., at E8-E9.
300
graduations and that school-encouraged prayer was
constitutionally impermissible at school-related sporting events.
Thus, in
Doe v.
Duncanville Independent School Dist.,
70 F. 3d 402 (1995), it had described a high school graduation
as "a significant, once in-a-lifetime event" to be contrasted with
athletic events in "a setting that is far less solemn and
extraordinary."
Id., at 406-407.9
In its opinion in this case, the Court of Appeals explained:
"The controlling feature here is the same as in
Duncanville: The prayers are to be delivered at football
games-hardly the sober type of annual event that can be
appropriately solemnized with prayer. The distinction to which [the
District] points is simply one without difference. Regardless of
whether the prayers are selected by vote or spontaneously initiated
at these frequently-recurring, informal, school-sponsored events,
school officials are present and have the authority to stop the
prayers. Thus, as we indicated in Duncanville, our decision
in Clear Creek II hinged on the singular context and
singularly serious nature of a graduation ceremony. Outside that
nurturing context, a Clear Creek Prayer Policy cannot survive. We
therefore reverse the district court's holding that [the
District's] alternative Clear Creek Prayer Policy can be extended
to football games, irrespective of the presence of the
nonsectarian, nonproselytizing restrictions." 168 F. 3d, at
823.
The dissenting judge rejected the majority's distinction between
graduation ceremonies and football games. In his
9 Because the dissent overlooks this case, it incorrectly
assumes that a "prayer-only policy" at football games was
permissible in the Fifth Circuit. See
post, at 323 (opinion
of REHNQUIST, C. J.).
301
opinion the District's October policy created a limited public
forum that had a secular purpose 10 and provided neutral
accommodation of noncoerced, private, religious speechY
We granted the District's petition for certiorari, limited to
the following question: "Whether petitioner's policy permitting
student-led, student-initiated prayer at football games violates
the Establishment Clause." 528 U. S. 1002 (1999). We conclude, as
did the Court of Appeals, that it does.
II
The first Clause in the First Amendment to the Federal
Constitution provides that "Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise
thereof." The Fourteenth Amendment imposes those substantive
limitations on the legislative power of the States and their
political subdivisions.
Wallace v.
Jaffree, 472 U. S. 38, 49-50
(1985). In
Lee v.
Weisman, 505 U. S. 577 (1992), we
held that a prayer delivered by a rabbi at a middle school
graduation ceremony violated that Clause. Although this case
involves student prayer at a different
10 "There are in fact several secular reasons for allowing a
brief, serious message before football games-some of which [the
District] has listed in its policy. At sporting events, messages
and/or invocations can promote, among other things, honest and fair
play, clean competition, individual challenge to be one's best,
importance of team work, and many more goals that the majority
could conceive would it only pause to do so.
"Having again relinquished all editorial control, [the District]
has created a limited public forum for the students to give brief
statements or prayers concerning the value of those goals and the
methods for achieving them." 168 F. 3d, at 835.
11 "The majority fails to realize that what is at issue in this
facial challenge to this school policy is the neutral
accommodation of non-coerced, private, religious speech, which
allows students, selected by students, to express their personal
viewpoints. The state is not involved. The school board has neither
scripted, supervised, endorsed, suggested, nor edited these
personal viewpoints. Yet the majority imposes a judicial curse upon
sectarian religious speech."
Id., at 836.
302
type of school function, our analysis is properly guided by the
principles that we endorsed in
Lee.
As we held in that case:
"The principle that government may accommodate the free exercise
of religion does not supersede the fundamental limitations imposed
by the Establishment Clause. It is beyond dispute that, at a
minimum, the Constitution guarantees that government may not coerce
anyone to support or participate in religion or its exercise, or
otherwise act in a way which 'establishes a [state] religion or
religious faith, or tends to do SO.'" Id., at 587 (citations
omitted) (quoting Lynch v. Donnelly, 465 U. S. 668, 678
(1984)).
In this case the District first argues that this principle is
inapplicable to its October policy because the messages are private
student speech, not public speech. It reminds us 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."
Board of Ed. of Westside
Community Schools (Dist. 66) v.
Mergens, 496 U. S. 226, 250 (1990)
(opinion of O'CONNOR, J.). We certainly agree with that
distinction, but we are not persuaded that the pregame invocations
should be regarded as "private speech."
These invocations are authorized by a government policy and take
place on government property at governmentsponsored school-related
events. Of course, not every message delivered under such
circumstances is the government's own. We have held, for example,
that an individual's contribution to a government-created forum was
not government speech. See
Rosenberger v.
Rector and
Visitors of Univ. of Va., 515 U. S. 819 (1995).
Although the District relies heavily on
Rosenberger and
similar cases involving such
303
forums,12 it is clear that the pregame ceremony is not the type
of forum discussed in those cases.13 The Santa Fe school officials
simply do not "evince either 'by policy or by practice,' any intent
to open the [pregame ceremony] to 'indiscriminate use,' ... by the
student body generally."
Hazelwood School Dist. v.
Kuhlmeier, 484
U. S. 260, 270 (1988) (quoting
Perry Ed. Assn. v.
Perry Local Educators' Assn., 460 U. S. 37, 47 (1983)).
Rather, the school allows only one student, the same student for
the entire season, to give the invocation. The statement or
invocation, moreover, is subject to particular regulations that
confine the content and topic of the student's message, see
infra, at 306307, 309. By comparison, in
Perry we
rejected a claim that the school had created a limited public forum
in its school mail system despite the fact that it had allowed far
more speakers to address a much broader range of topics than the
policy at issue here.14 As we concluded in
Perry, "selective
access does not transform government property into a public forum."
460 U. S., at 47.
12 See,
e. g., Brief for Petitioner 44-48, citing
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819
(1995) (limited public forum);
Widmar v.
Vincent,
454 U. S. 263
(1981) (limited public forum);
Capitol Square Review and
Advisory Bd. v.
Pinette, 515 U. S. 753 (1995)
(traditional public forum);
Lamb's Chapel v.
Center
Moriches Union Free School Dist., 508 U. S. 384 (1993)
(limited public forum). Although the District relies on these
public forum cases, it does not actually argue that the pregame
ceremony constitutes such a forum.
13 A conclusion that the District had created a public forum
would help shed light on whether the resulting speech is public or
private, but we also note that we have never held the mere creation
of a public forum shields the government entity from scrutiny under
the Establishment Clause. See,
e. g., Pinette, 515 U. S., at
772 (O'CONNOR, J., concurring in part and concurring in judgment)
("I see no necessity to carve out ... an exception to the
endorsement test for the public forum context").
14 The school's internal mail system in
Perry was open to
various private organizations such as "[l]ocal parochial schools,
church groups, YMCA's, and Cub Scout units." 460 U. S., at 39, n.
2.
304
Granting only one student access to the stage at a time does
not, of course, necessarily preclude a finding that a school has
created a limited public forum. Here, however, Santa Fe's student
election system ensures that only those messages deemed
"appropriate" under the District's policy may be delivered. That
is, the majoritarian process implemented by the District
guarantees, by definition, that minority candidates will never
prevail and that their views will be effectively silenced.
Recently, in Board of Regents of Univ. of Wis. System v.
Southworth, 529 U. S. 217 (2000), we
explained why student elections that determine, by majority vote,
which expressive activities shall receive or not receive school
benefits are constitutionally problematic:
"To the extent the referendum substitutes majority
determinations for viewpoint neutrality it would undermine the
constitutional protection the program requires. The whole theory of
viewpoint neutrality is that minority views are treated with the
same respect as are majority views. Access to a public forum, for
instance, does not depend upon majoritarian consent. That principle
is controlling here." Id., at 235.
Like the student referendum for funding in
Southworth,
this student election does nothing to protect minority views but
rather places the students who hold such views at the mercy of the
majority.15 Because "fundamental rights may not be
15 If instead of a choice between an invocation and no pregame
message, the first election determined whether a political speech
should be made, and the second election determined whether the
speaker should be a Democrat or a Republican, it would be rather
clear that the public address system was being used to deliver a
partisan message reflecting the viewpoint of the majority rather
than a random statement by a private individual.
The fact that the District's policy provides for the election of
the speaker only after the majority has voted on her message
identifies an obvious distinction between this case and the typical
election of a "stu-
305
submitted to vote; they depend on the outcome of no elections,"
West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624, 638
(1943), the District's elections are insufficient safeguards of
diverse student speech.
In
Lee, the school district made the related argument
that its policy of endorsing only "civic or nonsectarian" prayer
was acceptable because it minimized the intrusion on the audience
as a whole. We rejected that claim by explaining that such a
majoritarian policy "does not lessen the offense or isolation to
the objectors. At best it narrows their number, at worst increases
their sense of isolation and affront." 505 U. S., at 594.
Similarly, while Santa Fe's majoritarian election might ensure that
most of the students are represented, it does nothing to
protect the minority; indeed, it likely serves to intensify their
offense.
Moreover, the District has failed to divorce itself from the
religious content in the invocations. It has not succeeded in doing
so, either by claiming that its policy is "'one of neutrality
rather than endorsement'" 16 or by characterizing the individual
student as the "circuit-breaker" 17 in the process. Contrary to the
District's repeated assertions that it has adopted a "hands-off"
approach to the pregame invocation, the realities of the situation
plainly reveal that its policy involves both perceived and actual
endorsement of religion. In this case, as we found in
Lee,
the "degree of school involvement" makes it clear that the pregame
prayers bear "the imprint of the State and thus put school-age
children who objected in an untenable position."
Id., at
590.
The District has attempted to disentangle itself from the
religious messages by developing the two-step student
dent body president, or even a newly elected prom king or
queen."
Post, at 321.
16 Brief for Petitioner 19 (quoting
Board of Ed. of Westside
Community Schools (Dist. 66) v.
Mergens, 496 U. S. 226, 248 (1990)
(plurality opinion)). 17Tr. of Oral Arg. 7.
306
election process. The text of the October policy, however,
exposes the extent of the school's entanglement. The elections take
place at all only because the school "board
has chosen to
permit students to deliver a brief invocation and/or message." App.
104 (emphasis added). The elections thus "shall" be conducted "by
the high school student council" and "[u]pon advice and direction
of the high school principal."
Id., at 104-105. The decision
whether to deliver a message is first made by majority vote of the
entire student body, followed by a choice of the speaker in a
separate, similar majority election. Even though the particular
words used by the speaker are not determined by those votes, the
policy mandates that the "statement or invocation" be "consistent
with the goals and purposes of this policy," which are "to
solemnize the event, to promote good sportsmanship and student
safety, and to establish the appropriate environment for the
competition."
Ibid.
In addition to involving the school in the selection of the
speaker, the policy, by its terms, invites and encourages religious
messages. The policy itself states that the purpose of the message
is "to solemnize the event." A religious message is the most
obvious method of solemnizing an event. Moreover, the requirements
that the message "promote good sportsmanship" and "establish the
appropriate environment for competition" further narrow the types
of message deemed appropriate, suggesting that a solemn, yet
nonreligious, message, such as commentary on United States foreign
policy, would be prohibited.18 Indeed, the only type of message
that is expressly endorsed in the text is an "invocation"-a term
that primarily describes an appeal for divine
18 THE CHIEF JUSTICE'S hypothetical of the student body
president asked by the school to introduce a guest speaker with a
biography of her accomplishments, see
post, at 325
(dissenting opinion), obviously would pose no problems under the
Establishment Clause.
307
assistance.19 In fact, as used in the past at Santa Fe High
School, an "invocation" has always entailed a focused religious
message. Thus, the expressed purposes of the policy encourage the
selection of a religious message, and that is precisely how the
students understand the policy. The results of the elections
described in the parties' stipulation 20 make it clear that the
students understood that the central question before them was
whether prayer should be a part of the pregame ceremony.21 We
recognize the important role that public worship plays in many
communities, as well as the sincere desire to include public prayer
as a part of various occasions so as to mark those occasions'
significance. But such religious activity in public schools, as
elsewhere, must comport with the First Amendment.
The actual or perceived endorsement of the message, moreover, is
established by factors beyond just the text of the policy. Once the
student speaker is selected and the message composed, the
invocation is then delivered to a large audience assembled as part
of a regularly scheduled, school-sponsored function conducted on
school property. The message is broadcast over the school's public
address system, which remains subject to the control of school
officials. It is fair to assume that the pregame ceremony is
19 See,
e. g., Webster's Third New International
Dictionary 1190 (1993) (defining "invocation" as "a prayer of
entreaty that is usu[ally] a call for the divine presence and is
offered at the beginning of a meeting or service of worship").
20 See
supra, at 297-298, and n. 4.
21 Even if the plain language of the October policy were
facially neutral, "the Establishment Clause forbids a State to hide
behind the application of formally neutral criteria and remain
studiously oblivious to the effects of its actions."
Capitol
Square Review and Advisory Bd. v.
Pinette, 515 U. S., at
777 (O'CONNOR, J., concurring in part and concurring in judgment);
see also
Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508
U. S. 520, 534-535 (1993) (making the same point in the Free
Exercise Clause context).
308
clothed in the traditional indicia of school sporting events,
which generally include not just the team, but also cheerleaders
and band members dressed in uniforms sporting the school name and
mascot. The school's name is likely written in large print across
the field and on banners and flags. The crowd will certainly
include many who display the school colors and insignia on their
school T-shirts, jackets, or hats and who may also be waving signs
displaying the school name. It is in a setting such as this that
"[t]he board has chosen to permit" the elected student to rise and
give the "statement or invocation."
In this context the members of the listening audience must
perceive the pregame message as a public expression of the views of
the majority of the student body delivered with the approval of the
school administration. In cases involving state participation in a
religious activity, one of the relevant questions is "whether an
objective observer, acquainted with the text, legislative history,
and implementation of the statute, would perceive it as a state
endorsement of prayer in public schools."
Wallace, 472 U.
S., at 73, 76 (O'CONNOR, J., concurring in judgment); see also
Capitol Square Review and Advisory Bd. v.
Pinette,
515 U. S. 753,
777 (1995) (O'CONNOR, J., concurring in part and concurring in
judgment). Regardless of the listener's support for, or objection
to, the message, an objective Santa Fe High School student will
unquestionably perceive the inevitable pregame prayer as stamped
with her school's seal of approval.
The text and history of this policy, moreover, reinforce our
objective student's perception that the prayer is, in actuality,
encouraged by the school. When a governmental entity professes a
secular purpose for an arguably religious policy, the government's
characterization is, of course, entitled to some deference. But it
is nonetheless the duty of the courts to "distinguis[h] a sham
secular purpose from a sincere one."
Wallace, 472 U. S., at
75 (O'CONNOR, J., concurring in judgment).
309
According to the District, the secular purposes of the policy
are to "foste[r] free expression of private persons ... as well [as
to] solemniz[e] sporting events, promot[e] good sportsmanship and
student safety, and establis[h] an appropriate environment for
competition." Brief for Petitioner 14. We note, however, that the
District's approval of only one specific kind of message, an
"invocation," is not necessary to further any of these purposes.
Additionally, the fact that only one student is permitted to give a
content-limited message suggests that this policy does little to
"foste[r] free expression." Furthermore, regardless of whether one
considers a sporting event an appropriate occasion for solemnity,
the use of an invocation to foster such solemnity is impermissible
when, in actuality, it constitutes prayer sponsored by the school.
And it is unclear what type of message would be both appropriately
"solemnizing" under the District's policy and yet nonreligious.
Most striking to us is the evolution of the current policy from
the long-sanctioned office of "Student Chaplain" to the candidly
titled "Prayer at Football Games" regulation. This history
indicates that the District intended to preserve the practice of
prayer before football games. The conclusion that the District
viewed the October policy simply as a continuation of the previous
policies is dramatically illustrated by the fact that the school
did not conduct a new election, pursuant to the current policy, to
replace the results of the previous election, which occurred under
the former policy. Given these observations, and in light of the
school's history of regular delivery of a student-led prayer at
athletic events, it is reasonable to infer that the specific
purpose of the policy was to preserve a popular "state-sponsored
religious practice."
Lee, 505 U. S., at 596.
School sponsorship of a religious message is impermissible
because it sends the ancillary message to members of the audience
who are nonadherants "that they are outsiders, not full members of
the political community, and an ac-
310
companying message to adherants that they are insiders, favored
members of the political community."
Lynch, 465 U. S., at
688 (O'CONNOR, J., concurring). The delivery of such a message-over
the school's public address system, by a speaker representing the
student body, under the supervision of school faculty, and pursuant
to a school policy that explicitly and implicitly encourages public
prayer-is not properly characterized as "private" speech.
III
The District next argues that its football policy is
distinguishable from the graduation prayer in
Lee because it
does not coerce students to participate in religious observances.
Its argument has two parts: first, that there is no impermissible
government coercion because the pregame messages are the product of
student choices; and second, that there is really no coercion at
all because attendance at an extracurricular event, unlike a
graduation ceremony, is voluntary.
The reasons just discussed explaining why the alleged
"circuit-breaker" mechanism of the dual elections and student
speaker do not turn public speech into private speech also
demonstrate why these mechanisms do not insulate the school from
the coercive element of the final message. In fact, this aspect of
the District's argument exposes anew the concerns that are created
by the majoritarian election system. The parties' stipulation
clearly states that the issue resolved in the first election was
"whether a student would deliver prayer at varsity football games,"
App. 65, and the controversy in this case demonstrates that the
views of the students are not unanimous on that issue.
One of the purposes served by the Establishment Clause is to
remove debate over this kind of issue from governmental supervision
or control. We explained in
Lee that the "preservation and
transmission of religious beliefs and worship is a responsibility
and a choice committed to the private sphere." 505 U. S., at 589.
The two student elections au-
311
thorized by the policy, coupled with the debates that presumably
must precede each, impermissibly invade that private sphere. The
election mechanism, when considered in light of the history in
which the policy in question evolved, reflects a device the
District put in place that determines whether religious messages
will be delivered at home football games. The mechanism encourages
divisiveness along religious lines in a public school setting, a
result at odds with the Establishment Clause. Although it is true
that the ultimate choice of student speaker is "attributable to the
students," Brief for Petitioner 40, the District's decision to hold
the constitutionally problematic election is clearly "a choice
attributable to the State,"
Lee, 505 U. S., at 587.
The District further argues that attendance at the commencement
ceremonies at issue in
Lee "differs dramatically" from
attendance at high school football games, which it contends "are of
no more than passing interest to many students" and are "decidedly
extracurricular," thus dissipating any coercion. Brief for
Petitioner 41. Attendance at a high school football game, unlike
showing up for class, is certainly not required in order to receive
a diploma. Moreover, we may assume that the District is correct in
arguing that the informal pressure to attend an athletic event is
not as strong as a senior's desire to attend her own graduation
ceremony.
There are some students, however, such as cheerleaders, members
of the band, and, of course, the team members themselves, for whom
seasonal commitments mandate their attendance, sometimes for class
credit. The District also minimizes the importance to many students
of attending and participating in extracurricular activities as
part of a complete educational experience. As we noted in
Lee, "[l]aw reaches past formalism." 505 U. S., at 595. To
assert that high school students do not feel immense social
pressure, or have a truly genuine desire, to be involved in the
extracurricular event that is American high school football is
"formalistic in the extreme."
Ibid. We stressed in
Lee the
312
obvious observation that "adolescents are often susceptible to
pressure from their peers towards conformity, and that the
influence is strongest in matters of social convention."
Id., at 593. High school home football games are traditional
gatherings of a school community; they bring together students and
faculty as well as friends and family from years present and past
to root for a common cause. Undoubtedly, the games are not
important to some students, and they voluntarily choose not to
attend. For many others, however, the choice between attending
these games and avoiding personally offensive religious rituals is
in no practical sense an easy one. The Constitution, moreover,
demands that the school may not force this difficult choice upon
these students for "[i]t is a tenet of the First Amendment that the
State cannot require one of its citizens to forfeit his or her
rights and benefits as the price of resisting conformance to
statesponsored religious practice."
Id., at 596.
Even if we regard every high school student's decision to attend
a home football game as purely voluntary, we are nevertheless
persuaded that the delivery of a pregame prayer has the improper
effect of coercing those present to participate in an act of
religious worship. For "the government may no more use social
pressure to enforce orthodoxy than it may use more direct means."
Id., at 594. As in
Lee, "[w]hat to most believers may
seem nothing more than a reasonable request that the nonbeliever
respect their religious practices, in a school context may appear
to the nonbeliever or dissenter to be an attempt to employ the
machinery of the State to enforce a religious orthodoxy."
Id., at 592. The constitutional command will not permit the
District "to exact religious conformity from a student as the
price" of joining her classmates at a varsity football game.22
22 "We think the Government's position that this interest
suffices to force students to choose between compliance or
forfeiture demonstrates fundamental inconsistency in its
argumentation. It fails to acknowledge that what for many of
Deborah's classmates and their parents was a spiritual
313
The Religion Clauses of the First Amendment prevent the
government from making any law respecting the establishment of
religion or prohibiting the free exercise thereof. By no means do
these commands impose a prohibition on all religious activity in
our public schools. See,
e. g., Lamb's Chapel v.
Center
Moriches Union Free School Dist., 508 U. S. 384, 395 (1993);
Board of Ed. of Westside Community Schools (Dist. 66) v.
Mergens, 496
U. S. 226 (1990);
Wallace, 472 U. S., at 59. Indeed, the
common purpose of the Religion Clauses "is to secure religious
liberty."
Engel v.
Vitale, 370 U. S. 421, 430
(1962). Thus, nothing in the Constitution as interpreted by this
Court prohibits any public school student from voluntarily praying
at any time before, during, or after the schoolday. But the
religious liberty protected by the Constitution is abridged when
the State affirmatively sponsors the particular religious practice
of prayer.
IV
Finally, the District argues repeatedly that the Does have made
a premature facial challenge to the October policy that necessarily
must fail. The District emphasizes, quite correctly, that until a
student actually delivers a solemnizing message under the latest
version of the policy, there can be no certainty that any of the
statements or invocations will be religious. Thus, it concludes,
the October policy necessarily survives a facial challenge.
This argument, however, assumes that we are concerned only with
the serious constitutional injury that occurs when a student is
forced to participate in an act of religious wor-
imperative was for Daniel and Deborah Weisman religious
conformance compelled by the State. While in some societies the
wishes of the majority might prevail, the Establishment Clause of
the First Amendment is addressed to this contingency and rejects
the balance urged upon us. The Constitution forbids the State to
exact religious conformity from a student as the price of attending
her own high school graduation. This is the calculus the
Constitution commands."
Lee, 505 U. S., at 595-596.
314
ship because she chooses to attend a school event. But the
Constitution also requires that we keep in mind "the myriad, subtle
ways in which Establishment Clause values can be eroded,"
Lynch, 465 U. S., at 694 (O'CONNOR, J., concurring), and
that we guard against other different, yet equally important,
constitutional injuries. One is the mere passage by the District of
a policy that has the purpose and perception of government
establishment of religion. Another is the implementation of a
governmental electoral process that subjects the issue of prayer to
a majoritarian vote.
The District argues that the facial challenge must fail because
"Santa Fe's Football Policy cannot be invalidated on the basis of
some 'possibility or even likelihood' of an unconstitutional
application." Brief for Petitioner 17 (quoting
Bowen v.
Kendrick, 487
U. S. 589, 613 (1988)). Our Establishment Clause cases
involving facial challenges, however, have not focused solely on
the possible applications of the statute, but rather have
considered whether the statute has an unconstitutional purpose.
Writing for the Court in
Bowen, THE CHIEF JUSTICE concluded
that "[a]s in previous cases involving facial challenges on
Establishment Clause grounds,
e. g., Edwards v.
Aguillard, [
482 U. S. 578 (1987)];
Mueller v.
Allen, 463 U. S. 388 (1983), we
assess the constitutionality of an enactment by reference to the
three factors first articulated in
Lemon v.
Kurtzman,
403 U. S. 602,
612 (1971) ... , which guides '[t]he general nature of our inquiry
in this area,'
Mueller v.
Allen, supra, at 394." 487
U. S., at 602. Under the
Lemon standard, a court must
invalidate a statute if it lacks "a secular legislative purpose."
Lemon v.
Kurtzman, 403 U. S. 602, 612
(1971). It is therefore proper, as part of this facial challenge,
for us to examine the purpose of the October policy.
As discussed,
supra, at 306-307,309, the text of the
October policy alone reveals that it has an unconstitutional
purpose. The plain language of the policy clearly spells out the
extent of school involvement in both the election of the
speaker
315
and the content of the message. Additionally, the text of the
October policy specifies only one, clearly preferred message-that
of Santa Fe's traditional religious "invocation." Finally, the
extremely selective access of the policy and other content
restrictions confirm that it is not a content-neutral regulation
that creates a limited public forum for the expression of student
speech. Our examination, however, need not stop at an analysis of
the text of the policy.
This case comes to us as the latest step in developing
litigation brought as a challenge to institutional practices that
unquestionably violated the Establishment Clause. One of those
practices was the District's long-established tradition of
sanctioning student-led prayer at varsity football games. The
narrow question before us is whether implementation of the October
policy insulates the continuation of such prayers from
constitutional scrutiny. It does not. Our inquiry into this
question not only can, but must, include an examination of the
circumstances surrounding its enactment. Whether a government
activity violates the Establishment Clause is "in large part a
legal question to be answered on the basis of judicial
interpretation of social facts .... Every government practice must
be judged in its unique circumstances .... "
Lynch, 465 U.
S., at 693-694 (O'CONNOR, J., concurring). Our discussion in the
previous sections,
supra, at 307-310, demonstrates that in
this case the District's direct involvement with school prayer
exceeds constitutional limits.
The District, nevertheless, asks us to pretend that we do not
recognize what every Santa Fe High School student understands
clearly-that this policy is about prayer. The District further asks
us to accept what is obviously untrue: that these messages are
necessary to "solemnize" a football game and that this
single-student, year-long position is essential to the protection
of student speech. We refuse to turn a blind eye to the context in
which this policy arose, and that context quells any doubt that
this policy was implemented with the purpose of endorsing school
prayer.
316
Therefore, the simple enactment of this policy, with the purpose
and perception of school endorsement of student prayer, was a
constitutional violation. We need not wait for the inevitable to
confirm and magnify the constitutional injury. In
Wallace,
for example, we invalidated Alabama's as yet unimplemented and
voluntary "moment of silence" statute based on our conclusion that
it was enacted "for the sole purpose of expressing the State's
endorsement of prayer activities for one minute at the beginning of
each school day." 472 U. S., at 60; see also
Church of Lukumi
Babalu Aye, Inc. v.
Hialeah, 508 U. S. 520, 532
(1993). Therefore, even if no Santa Fe High School student were
ever to offer a religious message, the October policy fails a
facial challenge because the attempt by the District to encourage
prayer is also at issue. Government efforts to endorse religion
cannot evade constitutional reproach based solely on the remote
possibility that those attempts may fail.
This policy likewise does not survive a facial challenge because
it impermissibly imposes upon the student body a majoritarian
election on the issue of prayer. Through its election scheme, the
District has established a governmental electoral mechanism that
turns the school into a forum for religious debate. It further
empowers the student body majority with the authority to subject
students of minority views to constitutionally improper messages.
The award of that power alone, regardless of the students' ultimate
use of it, is not acceptable.23 Like the referendum in
Board of
Regents of Univ. of Wis. System v.
Southworth, 529 U.
S.
23 THE CHIEF JUSTICE accuses us of "essentially invalidat[ing]
all student elections," see
post, at 321. This is obvious
hyperbole. We have concluded that the resulting religious message
under this policy would be attributable to the school, not just the
student, see
supra, at 301-310. For this reason, we now hold
only that the District's decision to allow the student majority to
control whether students of minority views are subjected to a
school-sponsored prayer violates the Establishment Clause.
317
217 (2000), the election mechanism established by the District
undermines the essential protection of minority viewpoints. Such a
system encourages divisiveness along religious lines and threatens
the imposition of coercion upon those students not desiring to
participate in a religious exercise. Simply by establishing this
school-related procedure, which entrusts the inherently
nongovernmental subject of religion to a majoritarian vote, a
constitutional violation has occurred.24 No further injury is
required for the policy to fail a facial challenge.
To properly examine this policy on its face, we "must be deemed
aware of the history and context of the community and forum,"
Pinette, 515 U. S., at 780 (O'CONNOR, J., concurring in part
and concurring in judgment). Our examination of those circumstances
above leads to the conclusion that this policy does not provide the
District with the constitutional safe harbor it sought. The policy
is invalid on its face because it establishes an improper
majoritarian election on religion, and unquestionably has the
purpose and creates the perception of encouraging the delivery of
prayer at a series of important school events.
The judgment of the Court of Appeals is, accordingly,
affirmed.
It is so ordered.
24 THE CHIEF JUSTICE contends that we have "misconstrue[d] the
nature ... [of] the policy as being an election on 'prayer' and
'religion,'"
post, at 320. We therefore reiterate that the
District has stipulated to the facts that the most recent election
was held "to determine whether a student would deliver
prayer at varsity football games," that the "students chose
to allow a student to say a
prayer at football games," and
that a second election was then held "to determine which student
would deliver the
prayer." App. 65-66 (emphases added).
Furthermore, the policy was titled
"Prayer at Football
Games."
Id., at 99 (emphasis added). Although the District
has since eliminated the word "prayer" from the policy, it
apparently viewed that change as sufficiently minor as to make
holding a new election unnecessary.
318
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE
THOMAS join, dissenting.
The Court distorts existing precedent to conclude that the
school district's student-message program is invalid on its face
under the Establishment Clause. But even more disturbing than its
holding is the tone of the Court's opinion; it bristles with
hostility to all things religious in public life. N either the
holding nor the tone of the opinion is faithful to the meaning of
the Establishment Clause, when it is recalled that George
Washington himself, at the request of the very Congress which
passed the Bill of Rights, proclaimed a day of "public thanksgiving
and prayer, to be observed by acknowledging with grateful hearts
the many and signal favors of Almighty God." Presidential
Proclamation, 1 Messages and Papers of the Presidents, 1789-1897,
p. 64 (J. Richardson ed. 1897).
We do not learn until late in the Court's opinion that
respondents in this case challenged the district's studentmessage
program at football games before it had been put into practice. As
the Court explained in
United States v.
Salerno,
481 U. S. 739,
745 (1987), the fact that a policy might "operate
unconstitutionally under some conceivable set of circumstances is
insufficient to render it wholly invalid." See also
Bowen v.
Kendrick, 487
U. S. 589, 612 (1988). While there is an exception to this
principle in the First Amendment overbreadth context because of our
concern that people may refrain from speech out of fear of
prosecution,
Los Angeles Police Dept. v.
United Reporting
Publishing Corp., 528 U. S. 32, 38-40
(1999), there is no similar justification for Establishment Clause
cases. No speech will be "chilled" by the existence of a government
policy that might unconstitutionally endorse religion over
nonreligion. Therefore, the question is not whether the district's
policy
may be applied in violation of the Establishment
Clause, but whether it inevitably will be.
319
The Court, venturing into the realm of prophecy, decides that it
"need not wait for the inevitable" and invalidates the district's
policy on its face. See
ante, at 316. To do so, it applies
the most rigid version of the oft-criticized test of
Lemon
v.
Kurtzman, 403 U. S. 602
(1971).1
Lemon has had a checkered career in the decisional law of
this Court. See,
e. g., Lamb's Chapel v.
Center Moriches
Union Free School Dist., 508 U. S. 384, 398-399
(1993) (SCALIA, J., concurring in judgment) (collecting opinions
criticizing
Lemon); Wallace v.
Jaffree, 472 U. S. 38, 108-114
(1985) (REHNQUIST, J., dissenting) (stating that
Lemon's
"three-part test represents a determined effort to craft a workable
rule from a historically faulty doctrine; but the rule can only be
as sound as the doctrine it attempts to service" (internal
quotation marks omitted));
Committee for Public Ed. and
Religious Liberty v.
Regan, 444 U. S. 646, 671 (1980)
(STEVENS, J., dissenting) (deriding "the sisyphean task of trying
to patch together the blurred, indistinct, and variable barrier
described in
Lemon"). We have even gone so far as to state
that it has never been binding on us.
Lynch v.
Donnelly, 465
U. S. 668, 679 (1984) ("[W]e have repeatedly emphasized our
unwillingness to be confined to any single test or criterion in
this sensitive area .... In two cases, the Court did not even apply
the
Lemon 'test' [citing
Marsh
1 The Court rightly points out that in facial challenges in the
Establishment Clause context, we have looked to
Lemon's
three factors to "guid[e] [t]he general nature of our inquiry."
Ante, at 314 (internal quotation marks omitted) (citing
Bowen v.
Kendrick, 487 U. S. 589, 602
(1988)). In
Bowen, we looked to
Lemon as such a guide
and determined that a federal grant program was not invalid on its
face, noting that "[i]t has not been the Court's practice, in
considering facial challenges to statutes of this kind, to strike
them down in anticipation that particular applications may result
in unconstitutional use of funds." 487 U. S., at 612 (internal
quotation marks omitted). But here the Court, rather than looking
to
Lemon as a guide, applies
Lemon's factors
stringently and ignores
Bowen's admonition that mere
anticipation of unconstitutional applications does not warrant
striking a policy on its face.
320
v.
Chambers, 463 U. S. 783 (1983), and
Larson v.
Valente, 456 U. S. 228 (1982)]"). Indeed,
in
Lee v.
Weisman, 505 U. S. 577 (1992), an
opinion upon which the Court relies heavily today, we mentioned,
but did not feel compelled to apply, the
Lemon test. See
also
Agostini v.
Felton, 521 U. S. 203, 233 (1997)
(stating that
Lemon's entanglement test is merely "an aspect
of the inquiry into a statute's effect");
Hunt v.
McNair, 413 U.
S. 734, 741 (1973) (stating that the
Lemon factors are
"no more than helpful signposts").
Even if it were appropriate to apply the
Lemon test here,
the district's student-message policy should not be invalidated on
its face. The Court applies
Lemon and holds that the "policy
is invalid on its face because it establishes an improper
majoritarian election on religion, and unquestionably has the
purpose and creates the perception of encouraging the delivery of
prayer at a series of important school events."
Ante, at
317. The Court's reliance on each of these conclusions misses the
mark.
First, the Court misconstrues the nature of the "majoritarian
election" permitted by the policy as being an election on "prayer"
and "religion." 2 See
ante, at 314, 317. To the contrary,
the election permitted by the policy is a two-fold process whereby
students vote first on whether to have a student speaker before
football games at all, and second, if the students vote to have
such a speaker, on who that speaker will be. App. 104-105. It is
conceivable that the election could become one in which student
candidates campaign on platforms that focus on whether or not they
will
2 The Court attempts to support its misinterpretation of the
nature of the election process by noting that the district
stipulated to facts about the most recent election. See
ante, at 317, n. 24. Of course, the most recent election was
conducted under the
previous policy-a policy that required
an elected student speaker to give a pregame invocation. See App.
65-66, 99-100. There has not been an election under the policy at
issue here, which expressly allows the student speaker to give a
message as opposed to an invocation.
321
pray if elected. It is also conceivable that the election could
lead to a Christian prayer before 90 percent of the football games.
If, upon implementation, the policy operated in this fashion, we
would have a record before us to review whether the policy, as
applied, violated the Establishment Clause or unduly suppressed
minority viewpoints. But it is possible that the students might
vote not to have a pregame speaker, in which case there would be no
threat of a constitutional violation. It is also possible that the
election would not focus on prayer, but on public speaking ability
or social popularity. And if student campaigning did begin to focus
on prayer, the school might decide to implement reasonable campaign
restrictions.3
But the Court ignores these possibilities by holding that merely
granting the student body the power to elect a speaker that may
choose to pray, "regardless of the students' ultimate use of it, is
not acceptable."
Ante, at 316. The Court so holds despite
that any speech that may occur as a result of the election process
here would be
private, not
government, speech. The
elected student, not the government, would choose what to say.
Support for the Court's holding cannot be found in any of our
cases. And it essentially invalidates all student elections. A
newly elected student body president, or even a newly elected prom
king or queen, could use opportunities for public speaking to say
prayers. Under the Court's view, the mere grant of power
3 The Court's reliance on language regarding the student
referendum in
Board of Regents of Univ. of Wis. System v.
Southworth, 529 U. S. 217 (2000), to
support its conclusion with respect to the election process is
misplaced. That case primarily concerned free speech, and, more
particularly, mandated financial support of a public forum. But as
stated above, if this case were in the "as applied" context and we
were presented with the appropriate record, our language in
Southworth could become more applicable. In fact,
Southworth itself demonstrates the impropriety of making a
decision with respect to the election process without a record of
its operation. There we remanded in part for a determination of how
the referendum functions. See
id., at 235-236.
322
to the students to vote for such offices, in light of the fear
that those elected might publicly pray, violates the Establishment
Clause.
Second, with respect to the policy's purpose, the Court holds
that "the simple enactment of this policy, with the purpose and
perception of school endorsement of student prayer, was a
constitutional violation."
Ante, at 316. But the policy
itself has plausible secular purposes: "[T]o solemnize the event,
to promote good sportsmanship and student safety, and to establish
the appropriate environment for the competition." App. 104-105.
Where a governmental body "expresses a plausible secular purpose"
for an enactment, "courts should generally defer to that stated
intent."
Wallace, 472 U. S., at 74-75 (O'CONNOR, J.,
concurring in judgment); see also
Mueller v.
Allen,
463 U. S. 388,
394-395 (1983) (stressing this Court's "reluctance to attribute
unconstitutional motives to the States, particularly when a
plausible secular purpose for the State's program may be discerned
from the face of the statute"). The Court grants no deference
to-and appears openly hostile toward-the policy's stated purposes,
and wastes no time in concluding that they are a sham.
For example, the Court dismisses the secular purpose of
solemnization by claiming that it "invites and encourages religious
messages."
Ante, at 306; Cf.
Lynch, 465 U. S., at 693
(O'CONNOR, J., concurring) (discussing the "legitimate secular
purposes of solemnizing public occasions"). The Court so concludes
based on its rather strange view that a "religious message is the
most obvious means of solemnizing an event."
Ante, at 306.
But it is easy to think of solemn messages that are not religious
in nature, for example urging that a game be fought fairly. And
sporting events often begin with a solemn rendition of our national
anthem, with its concluding verse "And this be our motto: 'In God
is our trust.'" Under the Court's logic, a public school that
spon-
323
sors the singing of the national anthem before football games
violates the Establishment Clause. Although the Court apparently
believes that solemnizing football games is an illegitimate
purpose, the voters in the school district seem to disagree.
Nothing in the Establishment Clause prevents them from making this
choice.4
The Court bases its conclusion that the true purpose of the
policy is to endorse student prayer on its view of the school
district's history of Establishment Clause violations and the
context in which the policy was written, that is, as "the latest
step in developing litigation brought as a challenge to
institutional practices that unquestionably violated the
Establishment Clause."
Ante, at 308-309, 315. But the
contextattempted compliance with a District Court order-actually
demonstrates that the school district was acting diligently to come
within the governing constitutional law. The District Court ordered
the school district to formulate a policy consistent with Fifth
Circuit precedent, which permitted a school district to have a
prayer-only policy. See
Jones v.
Clear Creek Independent
School Dist., 977 F.2d
963 (CAS 1992). But the school district went further
than required by the District Court order and eventually settled on
a policy that gave the student speaker a choice to deliver either
an
4 The Court also determines that the use of the term
"invocation" in the policy is an express endorsement of that type
of message over all others. See
ante, at 306-307. A less
cynical view of the policy's text is that it permits many types of
messages, including invocations. That a policy tolerates religion
does not mean that it improperly endorses it. Indeed, as the
majority reluctantly admits, the Free Exercise Clause mandates such
tolerance. See
ante, at 313 ("[N]othing in the Constitution
as interpreted by this Court prohibits any public school student
from voluntarily praying at any time before, during, or after the
schoolday"); see also
Lynch v.
Donnelly, 465 U. S. 668, 673 (1984)
("Nor does the Constitution require complete separation of church
and state; it affirmatively mandates accommodation, not merely
tolerance, of all religions, and forbids hostility toward
any").
324
invocation or a message. In so doing, the school district
exhibited a willingness to comply with, and exceed, Establishment
Clause restrictions. Thus, the policy cannot be viewed as having a
sectarian purpose.5
The Court also relies on our decision in
Lee v.
Weisman, 505
U. S. 577 (1992), to support its conclusion. In
Lee, we
concluded that the content of the speech at issue, a graduation
prayer given by a rabbi, was "directed and controlled" by a school
official.
Id., at 588. In other words, at issue in
Lee was
government speech. Here, by contrast, the
potential speech at issue, if the policy had been allowed to
proceed, would be a message or invocation selected or created by a
student. That is, if there were speech at issue here, it would be
private speech. The "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,"
applies with particular force to the question of endorsement.
Board of Ed. of Westside Community Schools (Dist. 66) v.
Mergens, 496
U. S. 226, 250 (1990) (plurality opinion) (emphasis in
original).
Had the policy been put into practice, the students may have
chosen a speaker according to wholly secular criterialike good
public speaking skills or social popularity-and the student speaker
may have chosen, on her own accord, to deliver a religious message.
Such an application of the policy
5 Wallace v.
Jaffree, 472 U. S. 38 (1985), is
distinguishable on these grounds. There we struck down an Alabama
statute that added an express reference to prayer to an existing
statute providing a moment of silence for meditation.
Id.,
at 59. Here the school district added a secular alternative to a
policy that originally provided only for prayer. More importantly,
in
Wallace, there was "unrebutted evidence" that pointed to
a wholly religious purpose,
id., at 58, and Alabama
"conceded in the courts below that the purpose of the statute was
to make prayer part of daily classroom activity,"
id., at
77-78 (O'CONNOR, J., concurring in judgment). There is no such
evidence or concession here.
325
would likely pass constitutional muster. See
Lee, supra,
at 630, n. 8 (SOUTER, J., concurring) ("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 be harder to
attribute an endorsement of religion to the State").
Finally, the Court seems to demand that a government policy be
completely neutral as to content or be considered one that endorses
religion. See
ante, at 305. This is undoubtedly a new
requirement, as our Establishment Clause jurisprudence simply does
not mandate "content neutrality." That concept is found in our
First Amendment
speech cases and is used as a guide for
determining when we apply strict scrutiny. For example, we look to
"content neutrality" in reviewing loudness restrictions imposed on
speech in public forums, see
Ward v.
Rock Against
Racism, 491 U. S.
781 (1989), and regulations against picketing, see
Boos
v.
Barry, 485
U. S. 312 (1988). The Court seems to think that the fact that
the policy is not content neutral somehow controls the
Establishment Clause inquiry. See
ante, at 305.
But even our speech jurisprudence would not require that all
public school actions with respect to student speech be content
neutral. See,
e. g., Bethel School Dist. No . .1,03 v.
Fraser, 478 U.
S. 675 (1986) (allowing the imposition of sanctions against a
student speaker who, in nominating a fellow student for elective
office during an assembly, referred to his candidate in terms of an
elaborate sexually explicit metaphor). Schools do not violate the
First Amendment every time they restrict student speech to certain
categories. But under the Court's view, a school policy under which
the student body president is to solemnize the graduation ceremony
by giving a favorable introduction to the guest speaker would be
facially unconstitutional. Solemnization "invites and encourages"
prayer and the policy's content limitations
326
prohibit the student body president from giving a solemn, yet
nonreligious, message like "commentary on United States foreign
policy." See
ante, at 306.
The policy at issue here may be applied in an unconstitutional
manner, but it will be time enough to invalidate it if that is
found to be the case. I would reverse the judgment of the Court of
Appeals.
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