On MSNBC's Hardball with Chris Matthews, Family Research Council president Tony Perkins falsely claimed that the Supreme Court had prohibited students from praying at football games. In fact, the court barred a school district from having student chaplains conduct "invocations" over the stadium's public address system at after-school football games. The court found this policy unconstitutional not because it involved prayer by students but, rather, because the policy amounted to school sponsorship and endorsement of a religious message. In its 2000 decision, Santa Fe Independent School District v. Doe, the court made clear that its decision did not prohibit students from praying on their own. This distinction between private prayer and official endorsement was noted by none other than Supreme Court nominee John G. Roberts Jr. in a 2000 television interview.
Guest host David Gregory asked Perkins to provide "the worst" Supreme Court decisions of the past 40 years, which Perkins had said his organization's Justice Sunday II broadcast would highlight. Perkins commented that "it really began in 1962, when prayer was taken out of our schools. Then Bible reading was taken out of the schools. Then the Ten Commandments were taken out of the classroom in 1980. Then students were prohibited from praying at football games."
Perkins fundamentally misstated the principles underlying his litany of cases, from the 1962 Engel v. Vitale decision barring state-sponsored school prayer through the Santa Fe decision. Those cases did not prohibit students' religious activities but, instead, struck down government actions sponsoring or endorsing religion. In Engel, which Perkins identified as the first of his "decisions that have shaped the culture," the Supreme Court ruled that the First Amendment's prohibition on laws "respecting an establishment of religion" meant that "it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government." The court reaffirmed this statement in 1992 in the case of Lee v. Weisman, which barred a public high school from offering an invocation as part of its graduation ceremony. The court wrote that in Santa Fe that "our analysis is properly guided by the principles that we endorsed in Lee."
In Santa Fe, the court did not prohibit students from praying at football games. Instead, the court's concern was whether the school district was sponsoring or endorsing religion when a single student -- chosen by the school (or later, by a majority of the student body) for this purpose -- delivered a prayer or invocation before each football game over the stadium's public address system. The court found that the practice amounted to official sponsorship of religion:
[The school district] 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." ... The delivery of such a [religious] 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.
Roberts, whom Perkins publicly supports, has noted the Santa Fe case's distinction between student-initiated voluntary prayer and state sponsorship of that prayer, which the court struck down. In a July 2, 2000, interview with Dallas television station WFAA, re-aired on the August 7 broadcast of ABC's This Week, Roberts discussed the Santa Fe case:
ROBERTS: The test, as I see it, is the prayer is genuinely student-initiated, student-led, and does not look like something the government -- the school district is sponsoring, then it's going to be all right. But if the government is involved either in initiating it or sponsoring it, then you run into trouble. ... [T]he fight really isn't over does a particular prayer or invocation offend somebody in the audience. The issue is, is this being sponsored by the state? The real problem with the prayer before the invocation, before the football game case was that it had a history, and the history was that the school appointed a student chaplain and that student chaplain led the fans in that case in prayer, and when they changed that because of concern about constitutionality, the court said, "No, this is still part and parcel of the school initiated prayer." You have the situation where it's not school-initiated but the students themselves or groups of students themselves engaging in prayer or religious activity. That's an entirely different question.
The same government-vs.-private prayer distinction also applies to Perkins's other examples. In each, the Supreme Court forbade government-sponsored religion in public schools but not private or truly voluntary religious practice. The Engel decision threw out a New York state policy requiring that students recite a prayer at the beginning of the school day; it did not, as Perkins claimed, "[take] prayer out of our schools." In 1963's Abington School District v. Schempp, the court threw out a Pennsylvania law requiring that Biblical passages be read at the start of each school day; the decision did not take "Bible reading out of the schools"; it merely forbade the government from requiring the passages be read. Similarly, the 1980 decision in Stone v. Graham struck down a state law requiring the posting of the Ten Commandments in each classroom. In direct refutation of Perkins's claims, the Santa Fe decision noted that the Constitution does not bar public school students from praying voluntarily, or participating in religious activity like Bible study, at any point at school:
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 v. Jaffree, 472 U. S. 38, 59 (1985). 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.
Other cases illustrate how the court still allowed private religious observance and religious discussion to occur in public educational facilities. For example, the court's 1981 decision in Widmar v. Vincent allowed a registered student group to use a state university's buildings for religious teaching or prayer, because the facilities were open to all registered student groups.
From the August 12 edition of MSNBC's Hardball:
GREGORY: What's the worst that's happened over the past 40 years that you want to put pressure on?
PERKINS: Well, I think there's a steady stream. There's not one you can point to. But it really began in 1962 when prayer was taken out of our schools. Then Bible reading was taken out of the schools. Then the Ten Commandments was taken out of the classroom in 1980. Then students were prohibited from praying at football games. And then, of course, you've had the Roe v. Wade decision. You see a long string of activist court decisions that have shaped the culture, going beyond what the legislative elected representatives of this country were willing to do.