October 29, 2005

Pre-Emptively Dismissing "A Lawsuit Waiting to Happen"

by PG

As much as I believe (pun unintended) in the separation of church and state, Americans United for Separation of Church and State must be living in an alternate precedential and current-court reality if the group honestly thinks, as executive director and attorney the Rev. Barry W. Lynn says, that prayer in collegiate football programs "is a lawsuit waiting to happen." A NYT article on the matter takes a disturbingly credulous look at the plausibility of such litigation having any success.

In 2000, the United States Supreme Court reaffirmed its decisions against officially sponsored prayer in public schools in a case involving a district in Santa Fe, Tex., where prayers preceded high school football games over the public-address system.
The 6-to-3 majority opinion by Justice John Paul Stevens said that even when attendance is voluntary and when the decision to pray is made by students, "the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship," which violates the establishment clause of the First Amendment.
That may be the law, but God has long played a prominent role in the game's mythology, from the postcards of the former Alabama Coach Bear Bryant walking on water, to the mosaic of Christ with raised arms on a Notre Dame library that looms above the football stadium and is known as Touchdown Jesus.
Sante Fe Independent School District v. Doe is good law, but what Lynn apparently failed to mention is that the Supreme Court consistently has distinguished between religious activity by public elementary and secondary schools, which are attended by minors under state mandate, and religious activity by public universities, attended voluntarily by adults. While Lynn frets about the pressure to go along with Christian observance that is felt by a football player who wants to please his coach, he seems to ignore that wanting to please a superior does not rise to the level of quasi-compulsion that the Court recognized as the problem in a line of cases: McCollum v. Board of Education, Engel v. Vitale, Abington School District v. Schempp, Stone v. Graham, Wallace v. Jaffree (though possibly narrowed by the Court's refusal to hear Brown v. Gilmore) and Lee v. Weisman.

Nor is there a will on this Court to overturn the distinction between minors forced to attend school and vulnerable to coercion because of their age, and adults who can leave the football program, and the college, whenever they want. To remove religious observance from occasions where only adults are voluntarily present -- the opening of the Supreme Court and Congress, for example -- likely would create an even greater outcry than that which greeted the Ninth Circuit's decision in Newdow.

October 29, 2005 07:19 PM | TrackBack

Voluntariness can't be the only inquiry, though, can it? How does Christian prayer over a PA system at a public university's stadium differ from a Christmas display at a public park?

Posted by: Tom T. at October 30, 2005 03:05 PM

Right, it's not just voluntariness; there's also the concern about open forums and official government endorsement of religion.

Because universities tend to promote freedom of speech for their faculties (and I suppose coaches may be included in that), the existence of an open forum in a public university does not confer any imprimatur of state approval on the speech made, including that of religious sects. Indeed, Widmar and Rosenberger *require* public universities to provide as much scope for religious speech as for any other type. If a professor can state her preference for a political candidate in class, presumably a football coach can state his preference in religion.

The Times article doesn't mention PA system prayers at public universities' football games. The two schools with which I'm familiar, the Universities of Texas and Virginia, do not have such prayers, and I don't know which if any schools do.

I should clarify that the Supreme Court hasn't explicitly ruled on prayer at public university graduations, but has left undisturbed the 6th and 7th Circuits' decisions, which both emphasized the maturity of college students (!) in refusing to extend Lee from high school to college.

Posted by: PG at October 30, 2005 04:29 PM

Let us prey!

Posted by: Shag from Brookline at October 31, 2005 07:29 AM

What about the 4th Circuit case involving prayers before meals at VMI? If those students were so indoctrinable or coercible that the prayers violated their rights, is it totally implausible that a football player would feel coerced to join in a team prayer? I probably agree with you re: the general distinction between college and high school students. But there may still be particularly coercive environments within the college setting.

Posted by: Milbarge at November 2, 2005 02:35 PM

Like Justice Stevens in his cert denial, I think Bunting v. Mellen's facts can be distinguished as being pretty distant from those mentioned in the NYT article. First, this was an institution-wide practice, put into place by VMI's superintendent. Second, it required one of the school's cadets to offer a prayer; third, it was before every dinnertime roll-call. Indeed, voluntariness in any circumstance, whether in regard to prayer or other behavior, is suspect in a military setting -- which is as it must be to maintain order and foster the habit of obedience to command, but also should make those in authority cautious about the commands they give.

For a more thorough analysis of the isse of prayer at the college level, see here.

Posted by: PG at November 5, 2005 06:09 PM
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