- The Washington Times - Thursday, June 22, 2000

The U.S. Supreme Court traded its law books for tarot cards this week as it struck down an untested, never-even-implemented Texas school district program that, according to its guidelines, would have allowed students to elect a student speaker before football games "to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition." Writing for the majority or, in this case, prognosticating for the majority, Justice John Paul Stevens determined that the school district's student-message program "invites and encourages religious messages," and if ever implemented would be sure to amount to an unconstitutional establishment of religion.

Maybe it would, maybe it wouldn't. As Chief Justice William H. Rehnquist put it in his dissent, in which he was joined by Justices Antonin Scalia and Clarence Thomas, the court has ventured "into the realm of prophesy," ignoring the myriad messages that students might have chosen to deliver including prayer, of course, along with inspirational talks of a more secular nature. "But the Court ignores these possibilities," Chief Justice Rehnquist wrote, "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.' " Continuing, he wrote, "The Court so holds despite the fact 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." (emphasis in original)

It seems so clear but, alas, not to the majority of justices. Justice Stevens argued that while public school students may pray privately "before, during or after the school day," religious freedom is "abridged when the state affirmatively sponsors the particular religious practice of prayer." This may not seem quite so clear. What he means is, were the school to provide a forum for a student speaker who might choose to pray, the state that supports the school would therefore be promoting not merely allowing public prayer. (If you heard something snap, that was the Establishment Clause, stretched beyond the breaking point.)

In its zeal to prohibit student-led prayer in 1992, the court prohibited clergy-led prayer in the schools the court has sacrificed a significant First Amendment right, effectively clamping shut the mouths of the students.One wonders, as did Chief Justice Rehnquist, how today's Supreme Court would view George Washington's proclamation of a day of "public thanksgiving and prayer" at the behest of "the very Congress which passed the Bill of Rights." Or whether this Supreme Court might one day bar public schools from singing the national anthem because of a phrase in the concluding verse, "And this be our motto: 'In God is our trust.' " With this decision, which Chief Justice Rehnquist says "bristles with hostility to all things religious in public life," the Supreme Court appears to be satisfied no longer with its constitutional duty to prevent the government from establishing religion; it now appears bent on scouring from the schools all public expressions of religious speech.

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