- The Washington Times - Tuesday, June 27, 2000

The U.S. Supreme Court renounced the doctrine of original sin in City of Mobile vs. Bolden (1980). Writing for the high priests of jurisprudence, Justice Potter Stewart sermonized: "[P]ast [unconstitutional] discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful."

Original sin, however, smuggled its way into constitutional law last week. By a 6-3 vote in Santa Fe Independent School District vs. Doe (June 19, 2000), the Supreme Court bizarrely condemned as church-state heresy an unimplemented Texas high school policy pregnant with a potential for student-led prayer before varsity football games. A lay reader based on wildly errant media reports and editorials could be excused for believing the constitutionally erring high school was sponsoring the Paternoster and canticles before every football spectacle under the policy. But not a single word of prayer had been said before the Supreme Court struck like Zeus' thunderbolt. And therein lies the tale of original sin.

Santa Fe Independent School District arrived at the court unblessed with constitutional sainthood. It had in earlier litigation skirmishes been found guilty of promoting religion in the classroom and at graduation ceremonies. Indeed, the school district was laboring under a federal district court injunction to adopt 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."

With grudging penitence for its past church-state sins, the school district made oblations to a two-step football policy that was facially unalarming: first, students voted to determine whether "invocations," "messages," or "statements" should be delivered through a public address system by a classmate prior to football contests; second, if the affirmative prevailed, the student body would elect a student spokesperson for the delivery. The policy aimed "to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition." The selected speaker would be unconstrained in deciding "what message and/or invocation to deliver," consistent with the policy's objectives.

No election had ever been held under the challenged school reformation when the Supreme Court thundered its "nyet" in the Santa Fe case. Preaching for the majority, Justice John Paul Stevens recited the district's history of church-state sinning as proof it hoped to sin again like Conversos or Marranos from the Spanish Inquisition. The Justice elaborated: "Most striking to us is the evolution of the current policy from the long-sanctioned office of 'Student Chaplin' 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… . [I]t is reasonable to infer that the specific purpose of the policy was to preserve a popular 'state-sponsored religious practice.' "

The Holy Bible, admittedly, frowns on evil thinking, like "coveting thy neighbor's wife." Thus, President Jimmy Carter confessed to sinning for feeling lust in his heart. But before Justice Stevens spoke, it had never been thought that the First Amendment's prohibition of laws "respecting an establishment of religion" condemned official musings or cravings for the constitutional waywardness. Under his creed, church-state litigation could resemble heresy trials in which school officials are interrogated about their hopes that students would voluntarily choose prayers over secular messages to solemnize football events or to promote good sportsmanship.

Hopes, standing alone, inflict no constitutional harm. Justice Stevens insisted the unimplemented policy caused injury because students would be traumatized or insulted by a perception of state endorsement of religion. According to the constitutional prelate in the judiciary's sanctum sanctorum, the policy while neutral on its face was religious in subtext or de facto because a "religious message is the most obvious method of solemnizing an event." But that assertion is not at all obvious. Reciting the Gettysburg Address or countless other stirring speeches or lines may be equally effective in bringing sobriety to special occasions.

Claiming an omniscience customarily associated only with the divine, Justice Stevens portended a parade of horribles if the policy was not thwarted. He said with the certitude of a prophet: "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… . 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."

All those forebodings might prove true and raise serious constitutional questions if the policy escaped infanticide and lived at least into swaddling clothes. But the auguries might equally prove false, and exonerate the policy of any constitutional sinning. Thus, Justice Stevens claimed even more than papal infallibility in proclaiming what dire evils the policy would ineluctably spawn.

Stripped of insincerity, the Santa Fe ruling establishes the outlandish doctrine that a government policy tainted at its creation by the establishment clause is beyond salvation no matter what good reforming secularizing amendments are undertaken. If that is not active hostility toward religion, it is difficult to conceive of a doctrine that would be.



Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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