Amicus Curiae Brief — Santa Fe Independent School Dist. v. Doe

Supreme Court, U.S.

FILED

DEC 29 1999

OFFICE OF THE CLERK

No. 99-62

dtc} 5)

In The

Supreme Court of the United States

+

SANTA FE INDEPENDENT SCHOOL DISTRICT,

Petitioner,

v.

JANE DOE, ET AL.,

Respondents.

¢

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

e

BRIEF AMICUS CURIAE OF SENATOR JAMES M. INHOFE

(R OKLAHOMA); CONGRESSMEN MARK E. SOUDER

(R IN 4), JOSEPH R. PITTS (R PA 16), RICHARD K. ARMEY

(R TX 26), TOM DELAY (R TX 22), ROBERT B. ADERHOLT

(R AL 4), BOB BARR (R GA 7), ROSCOE G. BARTLETT

(R MD 6), JOE L. BARTON (R TX 6), HELEN CHENOWETH-

HAGE (R ID 1), JAMES DEMINT (R SC 4), JAY W. DICKEY

(R AK 4), VIRGIL H. GOODE, JR. (D VA 5), RALPH M.

HALL (D TX 4), JOHN N. HOSTETTLER (R IN 8), SAM

JOHNSON (R TX 3), SUE MYRICK (R NC 9), RON PAUL

(R TX 14), TOM TANCREDO (R CO 6), ZACH WAMP (R TN 3),

DAVE WELDON (R FL 15); AND WALLBUILDERS, INC.

in support of the Petitioner

¢

Barry C. Hodge

Counsel of Record for Amici Curiae

The National Legal Foundation

11521-E Midlothian Turnpike

Richmond, VA 23235

(804) 897-2340

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............sccccssssscsrssseseesesssenees ii

INTEREST OF AMICI CURIA .........ccscccccsssessessseeesssenes |

SUMMARY OF ARGUMENT .........cccsssssssssrsssseeessseesessees 2

ABRASUPEEEN ZT .cccccccccssccssscesescccsesscssoscsssoecssonsososeooossosqcssoooosses 3

I. INTRODUCTION—THE SEARCH FOR

PROPER PRINCIPLEG...........sssssssssssssesssseesenseensees 3

Il. THE PROPER APPROACH UNDER

Ill. THE PROPER APPROACH UNDER LEE V.

WWEEESIGAIN ..csccccccssescccsscossssvesssessscosossooonsssosonocoseseees 15

IV. THE FIFTH CIRCUIT’S NEW

ESTABLISHMENT CLAUSE TEST ................ 19

V. THE FIFTH CIRCUIT’S ANALYSIS CREATES

HOSTILITY, NOT NEUTRALITY, TOWARD

RELIGION .......ccoccoccccscccccccscccccccccsccccssessccccscocssccess 20

VI. THE PROBLEMS WITH THE

SOLEMNIZATION TEST........ccsessseceseseensenenees 26

CONCLUSION .cccccccccoccccsscesccssesssscssssnsssscessosssssosnsssossooooss 30

ll

TABLE OF AUTHORITIES

CASE PAGE

Abington Sch. Dist. v. Schempp,

374 U.S. 203 (1963)..ccsecscoosccscsrosossccsescsssssssvssscoscsee 15, 25

ACLU of New Jersey v. Black Horse Pike

Regional Bd. of Ed., 84 F.3d 1471

(3d Cir.1996) (€n DANC)....cccccceseeereereeeeeeneesereerereetesees 11

Adler v. Duval Co. Sch. Bd.,

174 F.3d 1236 (11th Cir. 1999) ......c eee 10-11, 13-15

Agostini v. Felton, 521 U.S. 203 (1998) .....sceceseeserererereees 15

Allegheny County v. American Civil Liberties Union

Greater Pittsburgh Chapter,

4B2 UB. S73 (1DSP) .ccccccvesssccscccssovesesccsccscssseses 7, 16, 24-25

Bd. of Ed. of Kiryas Joel. v. Grumet,

512 U.S. 687, 694-96 (1994) .....ccccccsesseeeereeneeteeneenees 5-9

Bd. of Ed. of Westside Community Sch. v. Mergens,

496 U.S. 248 (1990).......0sscesrccsrsrsccrrcesccseccsessreees 20-21, 23

Chandler v. James,

180 F.3d 1254 (11th Cir. 1999) oo... ccceceeeeeeees 2, 12-14,19

Church of Scientology Flag Serv. Org., Inc.

v. City of Clearwater,

2 F.3d 1514 (11th Cir. 1993) ...........ccccrcerersserssseseeees 10-11

City of Edmond v. Robinson,

134 L. Ed. 2d 801 (cert. denial)......ccccccccccesereeeseeeereeeennees 9

ul

TABLE OF AUTHORITIES CONTINUED

Doe v. Duncanville Indep. Sch. Dist.,

70 F.3d 402 (Sth Cir.1995) ooo cccccccccecceeeees 3-4, 27-28

Doe v. Madison Sch. Dist. No. 321,

147 F.3d 832 (9th Cir. 1998) ooo cccccccceccccecccececsecceeeeseees ll

Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806

sk 3-4, 11, 15, 18-23, 26-29

Doe v. Santa Fe Indep. Sch. Dist., 171 F.3d 1013 (Sth

Cir.1999) (denial of rehearing en banc)..........cccc0000- 10, 26

Edwards v. Aguillard, 482 U.S. 578 (1987) cocccccccccccccceceeees 10

Harris v. Joint Sch. Dist. No. 241,

41 F.3d 447 (9th Cir. 1994) ooocccccccccceeeeeeeeeeees ll

Hogue v. Johnson, 131 F.3d 466 (Sth Cir. 1997) ..00000000000... 21

Jager v. Douglas County Sch. Dist.,

862 F.2d 824, (1 1th Cir, 1989) ooo ccccccccceceeeeees ll

Jones v. Clear Creek Ind. Sch. Dist..

977 F.2d 963 (Sth Cir. 1992) 00000000... 10, 15, 20-23, 26-28

Lartn v. Grendel's Den, Inc., 459 U.S. 116 coccccccccccccceccceeeee 8

Lee v. Weisman,

505 U.S. $77 (1992).................... 2, 7, 9, 15-19, 22, 27-28

Lemon v. Kurzman,

403 U.S. 602 (1971)... 2, 5-9, 11-13, 15, 28

IV

TABLE OF AUTHORITIES CONTINUED

Lynch v. Donnelly, 465 U.S. 668 (1984)............. 7, 10, 16, 24

Serbian Eastern Orthodox Diocese v. Milivojevich,

0 7

Stone v. Graham, 449 U.S. 39 (19PO)........ccccccccccceeeeeeeeeeeeeees 7

Wallace v. Jaffree, 472 U.S. 38 (1985) .......cccccceeeeeeeeees 10, 16

Walz v. Tax Comm'n of New York City,

RE 24

Zorach v. Clauson, 343 U.S. 306 (1952).............06. 23-24, 29

]

INTEREST OF AMICI CURIAE'

Amici curiae Senator James M. Inhofe (R Oklahoma)

and Congressmen Mark E. Souder (R IN 4), Joseph R. Pitts

(R PA 16), Richard K. Armey (R TX 26), Tom DeLay (R TX

22), Robert B. Aderholt (R AL 4), Bob Barr (R GA 7),

Roscoe G. Bartlett (R MD 6), Joe L. Barton (R TX 6), Helen

Chenoweth-Hage (R ID 1), James DeMint (R SC 4), Jay W.

Dickey (R AK 4), Virgil H. Goode, Jr. (D VA 5), Ralph M.

Hall (D TX 4), John N. Hostettler (R IN 8), Sam Johnson (R

TX 3), Sue Myrick (R NC 9), Ron Paul (R TX 14), Tom

Tancredo (R CO 6), Zach Wamp (R TN 3), and Dave Weldon

(R FL 15) are members of the United States Senate and of the

United States House of Representatives. Senator Inhofe

represents the state of Oklahoma with a population of

approximately 3.3 million. Each member of the House

represents approximately 600,000 to 650,000 constiwents. In

total these amici represent approximately 15.8 million

Americans. Each of these amici is acutely aware that the

decision of this Court in this case will impact his or her

constituents and believes that it is not in the best interest of

those constituents to deny them the right to engage in prayers

at various public events. Although this case involves a facial

challenge to one school district’s policy that might or might

not even result in prayers at football games, amici are aware

that the possible ramifications of the decision are much

broader than the limited facts of the present controversy.

Amicus curiae WallBuilders, Inc. is a 501c (3)

organization that is dedicated to the restoration of the moral

and religious foundation on which America was built. As

' Counsel of record to the parties in this case have consented to the filing

of this brief through blanket consent letters which have been filed with

the Clerk. Additionally, Counsel for Jane Doe, et al. has consented by

individual letter to Counsel of Record for amici. No counsel for any

party has authored this brief in whole or in part. No person or entity,

other than the amicus curiae WallBuilders, Inc., has made any monetary

contribution to the preparation or submission of this brief.

2

such, the organization has a direct interest in seeing that

students be allowed to pray if they so desire.

SUMMARY OF ARGUMENT

_ Justice O’Connor has warned that Establishment

Clause jurisprudence, including the test from Lemon v.

Kurtzman, 403 U.S. 602 (1971), must be applied in a manner

that takes into account the various different categories of

Establishment Clause cases. Justice Kennedy issued a similar

warning in Lee v. Weisman, 505 U.S. 577 (1992), that applies

to Lee itself. When these warnings are heeded, these tests will

not be applied woodenly. When the underlying principles are

understood, Santa Fe’s Football Prayer Policy is clearly

constitutional. The Eleventh Circuit’s recent case of

Chandler v. James, 180 F.3d 1254 (11" Cir. 1999), provides a

good model for how to apply Establishment Clause principles

to the case at bar.

By way of contrast, the test employed by the Fifth

Circuit panel in this case should be rejected. The panel

opinion in this case introduced a new test into the already

confused Establishment Clause Jurisprudence, namely the

“solemnization test.” Under this test, the court said that

football games were not the type of events that are capable of

being solemnized. Therefore, students cannot pray at football

games. This test is bad for two reasons. First, the school

proffered other secular purposes, but these reasons were

ignored. But second and more importantly, any type of public

prayers at public events can now be challenged as

inappropriate under the theory that the event in question

cannot be solemnized.

In addition to these problems, the test seems to be

driven by an impermissible hostility towards religion.

If the Supreme Court adopts this test, the implications

are obvious and disconcerting. This country will face years of

litigation in which prayers at various public events will be

3

challenged. In all of these cases, judges will have no legal

principle to guide them—it will all be the judge's opinion.

ARGUMENT

I. INTRODUCTION—THE SEARCH FOR PROPER

PRINCIPLES

This case is of great interest and significance to the

American people. Prayer at public events is a long standing

tradition in this country—a tradition that should be allowed to

continue unless and until someone can demonstrate that it

violates the Constitution. In this case as in many others, a

federal court has declared that such prayers—this time at

football games—are, in fact, unconstitutional. Yet as this

case comes before this Court, it is hard to tell why the Fifth

Circuit held the Policy regarding student-led, student-initiated

speech at football games to be unconstitutional. The policy

simply allows for students to decide whether they will have a

speaker prior to sporting events. If students so chose, the

policy allows the selected student to decide whether his or

her private speech will include a “brief invocation and/or

message.” Doe v. Santa Fe Ind. Sch. Dist., 168 F.3d 806, 812

(5" Cir. 1999).

In part it is hard to tell why the Fifth Circuit held the

Football Pre-game Policy unconstitutional because the court

dedicated most of its opinion to the issue of the School ,

District’s policy on graduation prayer and gave short shrift—

indeed just one paragraph—to its analysis of the Football

Policy. But that is not the only reason it is difficult to |

discover the court’s rationale. The Fifth Circuit’s rationale is

also hard to understand because it did little more than quote

the holding of one of its prior cases, Doe v. Duncanville Ind.

Sch. Dist., 70 F.3d 402 (5" Cir. 1995).

However, there are two interrelated problems with the

Santa Fe court’s use of Duncanville. First, the court

significantly altered the quotation upon which it relied. The

4

Santa Fe court quoted the Duncanville court as saying, “Here,

we are dealing with a setting [football and basketball games]

far less solemn and extraordinary ....” Santa Fe, 168 F.3d at

822-23 (quoting Duncanville) (alteration original to Santa

Fe). But this is simply not a justifiable alteration of the

quotation. The Duncanville court was dealing with school

employee-supervised prayers at basketball team practices, in

the basketball team locker room, after basketball games at

center court, and on the basketball team bus. The Duncanville

court specifically stated: “DISD [Duncanville Independent

School District] makes no attempt to distinguish the prayers

given before football games and at awards ceremonies from

those given at basketball games. 7o the extend that these

situations are materially alike, our opinion applies equally.”

Duncanville, at 405, n.2 (emphasis added).

Whether or not there are material differences between

the various basketball prayers at issue in Duncanville and that

district’s football prayers, there are clearly material

differences between Duncanville’s basketball prayers and

Santa Fe’s Football Game Message Policy at issue here. As

just one example, the Message Policy at issue here does not

authorize prayers conducted under the direct supervision of a

school employee who routinely and repeatedly has control of

a small number of the same students, as were the prayers in

Duncanville. Duncanville at 404. Thus, the Duncanville

analysis does not, at least on its face, apply to the Santa Fe

case at all. Yet that is as close to an articulated rationale as

the court gave.”

This points to the second interrelated problem. The

Santa Fe court was not careful to apply the proper

* It is true that the court stated in a footnote early in its opinion that

“Although for the sake of simplicity and clarity we address SFISD’s

arguments only as they relate to graduation ceremonies, our analysis

applies with equal, if not greater, force to the Football Policy as well.”

Santa Fe at 814, n.7. However, one of the graduation prayer policies was

upheld. The only grounds for declaring the Football Pre-game Policy

unconstitutional was the solemnization issue.

5

Establishment clause principles in a highly sensitive, fact-

specific, “case-category-specific”” manner. Instead it merely

took some Establishment Clause verbiage—entirely out of

context—and applied it without even trying to distill the

underlying principles and separating those that applied to the

facts before it from those that did not.

The Santa Fe Court is not alone in this shortcoming.

Indeed, many federal courts have failed to abide by the

admonitions of several members of this Court that

Establishment Clause cases must be analyzed using only those

principles that are appropriate to various sub-categories of

cases.

Had the court analyzed the Football Pre-game Policy

with this admonition in mind, it would have found the prayers

constitutional, whether it had used the Lemon test or the Lee

test. Whether one employs Lemon or Lee or both, one must

beware the problem described by Justice O’Connor in the

following lengthy but important passage:

It is always appealing to look for a single

test, a Grand Unified Theory that would resolve

all the cases that may arise under a particular

clause. ...

But the same constitutional principle may

operate very differently in different contexts.

We have, for instance, no one Free Speech

Clause test. We have different tests for content-

based speech restrictions, for content-neutral

speech restrictions, for restrictions imposed by

the government acting as employer, for

restrictions in nonpublic fora, and so on. This

simply reflects the necessary recognition that

the interests relevant to the Free Speech Clause

inquiry-personal liberty, an informed citizenry,

* See infra for discussion of this term.

6

government efficiency, public order, and so on-

are present in different degrees in each context.

And setting forth a unitary test for a

broad set of cases may sometimes do more harm

than good. Any test that must deal with widely

disparate situations risks being so vague as to be

useless. I suppose one can say that the general

test for all free speech cases is “a regulation is

valid if the interests asserted by the government

are stronger than the interests of the speaker and

the listeners,” but this would hardly be a

serviceable formulation. Similarly, Lemon has,

with some justification, been criticized on this

score.

Moreover, shochorning new problems

into a test that does not reflect the special

concerns raised by those problems tends to

deform the language of the test. Relatively

simple phrases like “primary effect . . . that

neither advances nor inhibits religion” and

“entanglement,” acquire more and more

complicated definitions which stray ever further

from their literal meaning.

Bd. of Ed. of Kiryas Joel. v. Grumet, 512 U.S. 687, 718-19

(1994) (O’Connor, J., concurring in part and concurring in the

judgment).

After drawing these parallels between this Court’s Free

Speech and Establishment Clause jurisdiction, Justice

O’Connor went on to explain the dangers present in trying to

woodenly apply the Lemon test to ine wide diversity of

Establishment Clause cases the courts have had to deal with:

I think it is more useful to recognize the relevant

concerns in each case on their own terms, rather

than trying to squeeze them into language that

does not really apply to them.

-

Finally, another danger to keep in mind is

that the bad test may drive out the good. Rather

than taking the opportunity to derive narrower,

more precise tests from the case law, courts tend

to continually try to patch up the broad test,

making it more and more amorphous and

distorted. This, I am afraid, has happened with

Lemon.

Experience proves that the Establishment

Clause, like the Free Speech Clause, cannot

easily be reduced to a single test. There are

different categories of Establishment Clause

8

Larkin itself suggested, government impartiality

towards religion may not be enough in such

situations: A law that bars all alcohol sales

within some distance of a church, school, or

hospital may be valid, but an equally

evenhanded law that gives each institution

discretionary power over the sales may not be.

Larkin, supra, at 123-124. Of course, there may

well be additional categories, or more

opportune places to draw the lines between the

categories.

cases, which may call for different approaches. Id. at 719-21 (emphasis added).

Some cases, like this one, involve government Having already pointed out some of the problems with

actions targeted at particular individuals or | an overly-unitary approach, Justice O’Connor then discussed

groups, imposing special duties or giving some of the advantages of the case-category-specific

special benefits. Cases involving government approach:

speech on religious topics, see, e.g., Lee v.

Weisman, supra; Allegheny County v. American

Civil Liberties Union Greater Pittsburgh

Chapter, 492 U.S. 573 (1989); Lynch v.

Donnelly, 465 U.S. 668 (1984); Stone v.

Graham, 449 U.S. 39 (1980), seem to me to fall

into a different category, and to require an

analysis focusing on whether the speech

endorses or disapproves of religion, rather than

on whether the government action is neutral

with regard to religion. See Allegheny County,

supra, at 623-637 (O’Connor, J., concurring in

part and concurring in judgment). |

Another category encompasses cases in

which the government must make decisions

about matters of religious doctrine and religious

law. See Serbian Eastern Orthodox Diocese v.

Milivojevich, 426 U.S. 696 (1976). ...

Government delegations of power to religious

bodies may make up yet another category. As

As the Court’s opinion today shows, the

slide away from Lemon's unitary approach is

well under way. A return to Lemon, even if

possible, would likely be futile, regardless of

where one stands on the substantive

Establishment Clause questions. | think a less

unitary approach provides a better structure for

analysis. If each test covers a narrower and

more homogeneous area, the tests may be more

precise and therefore easier to apply. There may

be more opportunity to pay attention to the

specific nuances of each area. There might also

be, I hope, more consensus on each of the

narrow tests than there has been on a broad test.

And abandoning the Lemon framework need not

mean abandoning some of the insights that the

test reflected, nor the insights of the cases that

applied it.-

9

.. . [I]t seems to me that the case law will better

be able to evolve towards this if it is freed from the

Lemon test’s rigid influence. The hard questions

would, of course, still have to be asked; but they will

be asked within a more carefully tailored and less

distorted framework.

Id. at 721.

This quotation is not invoked here to advocate that this

Court ignore or reject Lemon (although that could be

considered a major thrust of Justice O’Connor’s comments).

As has been pointed out repeatedly, Lemon has never been

overturned. Rather, the point is to note that whether one uses

Lemon or Lee, the analysis must be case-category specific.*

In fact, Justice O’Connor’s process could be, indeed

should be, followed even further. For example, she discussed

Lee with Allegheney County and Stone. Yet there are

important differences between graduation prayer cases and

religious display cases. One such difference is that the

religious display category of Establishment Clause cases have

different standing rules than other Establishment Clause cases

in at least some Circuits. See, e.g., Citv of Edmond v.

Robinson, 134 L. Ed. 2d 801 (cert. denial) (Rehnquist, C.J.,

Scalia, Thomas, JJ., dissenting).

Thus, the lesson of Justice O’Connor’s quotation is that

under both Lemon and Lee, one must use a very case-category

specific approach. A principles-not-prongs approach will

produce the best results. When courts do not heed this

warning, jurisprudential chaos is the result.

* Nor is it the purpose of this brief to suggest other replacement tests.

Amici believe that it would be possible to have a more unified approach

to Establishment Clause jurisprudence were that jurisprudence truer to

the intent of the Framers. The entire discussion in this brief is based on

“what is,” not on what “might be” or “what ought to be.”

10

il. THE PROPER APPROACH UNDER LEMON

The decision of the Santa Fe court has seriously

exacerbated the confused Establishment Clause jurisprudence

in the Fifth Circuit. In fact, six judges joined a dissenting

opinion filed by a seventh judge in the Denial of Rehearing

En Banc in the present case. Doe v. Santa Fe Ind. Sch. Dist.,

171 F.3d 1013, 1014 (5" Cir. 1999). Judge Jolly, who wrote

the dissent, and his colleagues aimed some unusually harsh

words at the panel decision. For example, the dissent states:

The Santa Fe majority also casts our

Circuit’s Establishment Clause jurisprudence

into throes of uncertainty. The majority

opinions in Santa Fe and Jones v. Clear Creek

Independent Sch. Dist., 977 F.2d 963 (5" Cir.

1992), are so clearly in conflict with each other

that school districts within our jurisdiction will

have no guidance on how to interpret our

confused precedent.

Id. at 1015. Although most of what was written in the opinion

was aimed at that part of the panel decision that discussed

graduation prayers, it is true that Santa Fe has created a

“jurisprudential quagmire” in the Fifth Circuit. /d. We have

reached a sad state of affairs when seven judges characterize

their own jurisprudence in this manner.

And the Fifth Circuit is by no means alone. Perhaps an

even more egregious example of ignoring the use of sub-

category specific analysis is provided by the recent panel

decision in Adler v. Duval Co. Sch. Bd., 174 F.3d 1236 (1 *

Cir. 1999) (Adler II). Adler II involved graduation prayers.

In its Lemon analysis, the Adler I] court looked at cases

dealing with creation science, Edwards v. Aguillard, 482 U.S.

578 (1987); moments of silence, Wallace v. Jaffree, 472 U.S.

38 (1985); nativity scenes, Lynch v. Donnelly, 465 U.S. 668

(1984), charitable solicitation laws, Church of Scientology

Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514 (11th

Cir.1993), and prayer at football games, Jager v. Douglas

County Sch. Dist., 862 F.2d 824, (11th Cir. 1989), in addition

to cases dealing with graduation prayer. Presumably, some of

the propositions for which these cases were cited could

validly be applied across categories. Nonetheless, the overall

result was exactly what Justice O’Connor predicted it would

be—confusion.

Unfortunately, an already bad result was compounded

because the graduation prayer cases that the Adler // majority

cited, Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (Sth

Cir.1999) (the case now, in part, before this Court); Doe vy.

Madison Sch. Dist. No. 321, 147 F.3d 832 (9th Cir.1998);

ACLU of New Jersey v. Black Horse Pike Regional Bd. of Ed.,

84 F.3d 1471 (3d Cir.1996) (en banc); Harris v. Joint Sch.

Dist. No. 241, 41 F.3d 447, (9th Cir. 1994), went even further

afield and incorporated this cross-categorical analysis

multiple times over. The cases utilized by the Santa Fe,

Madison, Black Horse, and Harris courts in their Lemon

analyses included the following Establishment Clause

categories: tax funding, services, religious displays (in and out

of schools), baccalaureate services, equal access, Bible

reading, release time, publishing, moments of silence,

legislative chaplains, employment, and school districting

cases, in addition to school prayer cases in numerous settings,

including the classroom, assemblies, after school, and at

sports events. See Santa Fe, Madison, Black Horse, and

Harris, passim.

Because of this state of affairs and because of our

concern over the disastrous results it is producing around the

country, amici urge this Court to give guidance to the federal

courts in how to apply Establishment Clause principles. Even

without this Court overruling Lemon, the federal courts should

be capable of ascertaining and applying appropriate

Establishment Clause principles to various categories of

prayer cases.

12

As an example of a court that got it right, amici suggest

the approach of the Eleventh Circuit Court of Appeals in

Chandler v. James, 180 F.3d 1254 (1 1" Cir. 1999). In

Chandler, the Eleventh Circuit had before it an injunction

issued by a trial court that prohibited, among other things, a

school district from permitting certain religious activities by

students at events such as football games, graduation

ceremonies, and other school events. The Alabama Attorney

General’s Office challenged the injunction specifically as it

related to the aspects just mentioned, i.e, prohibiting student

religious speech at various events including football games.

Id. at 1257-58. The Eleventh Circuit vacated the entire

injunction holding that the prohibition against permitting

student religious speech violate the First Amendment. /d. at

1266. Given that religious speech at sporting events was

involved, the analysis of the Chandler court is very instructive

in the instant case.

The Chandler court never engaged in a standard prong-

by-prong Lemon analysis. In fact, other than in a

parenthetical in footnote 12, the Chandler court never even

mentioned Lemon. Indeed, the lion’s share of its analysis was

done under the headings of Free Exercise and Free Speech.

Yet one finds throughout the Establishment, Free Exercise,

and Free Speech portions of the opinion-——in a nuanced and

case-category appropriate manner—-Lemon's Establishment

Clause principles. For example, in analyzing other cases, the

Chandler court spoke of “the State’s decision to create an

exclusively religious medium . . . not the ‘permitting’ of

religious speech .. .” Chandler, 180 F.3d at 1259. This is the

language of purpose. The opinion addresses whether certain

practices advance or endorse religion; it speaks of hostility

and neutrality. /d. at 1259-1265. The opinion discusses

teacher participation that creates entanglement. /d. at 1264.

Thus, Chandler utilized Lemon's principles without

ever invoking the test itself. Yet where appropriate, the

Lemon principles were utilized. And the result was much

more desirable, in that that court also heeded Justice

13

O'Connor's admonition to pay attention to case categories.

The Chandler court did not woodenly examine what various

other courts had said under each of Lemon's prongs,

regardless of context, and thereby introduce extraneous

statements applicable to totally different categories of cases.

Other than one sentence that quickly summarized several

lower court graduation cases, /d. at 1259, the Chandler court

stuck almost exclusively” to Supreme Court cases involving

prayer and other religious speech in academic contexts. /d. at

1257-1265.

The conclusion of the Chandler court under its

category-specific-principles-not-prongs approach to Lemon is

clear: Schools cannot refuse to permit students to speak

religiously at school-organized or -sanctioned events. /d. at

1205. Chandler's message is also clear that courts may not

order schools to refuse to permit such speech. /d. Quite to

the contrary, schools have a constitutional duty to

affirmatively permit this speech. /d. at 1263. Thus, under the

principles of Lemon, as appropriately applied in Chandler, the

Football Policy in this case ts constitutional.

It is of interest to note that Adler // and Chandler both

came out of the Eleventh Circuit. This highlights the

confusion that exists in the federal courts. If we continue to

use Adler I] and Chandler as examples of a court that got it

right and a court that got it wrong, we gain several more

useful insights.

Suppose one takes the approach of the Adler //

majority. The majority did not examine the prayer guidelines

before it under Lemon's excessive entanglement prong.

However, it found that both the policy’s purpose and its effect

were to “permit prayer.” Adler I/, 174 F.3d at 1249-51. Of

course, some will disagree with these assertions. They will

find the arguments contained in the dissent more persuasive.

See id. at 1265-71. But let us assume arguendo that the Adler

* Most notably, there are several references to Lynch. There are other

minor exceptions as well.

14

// majority was correct. if the purpose and effect of the

guidelines were to permit prayer, the guidelines are, as we

have just seen, constitutional, not unconstitutional under

Chandler.

Amici suggest that the Chandler court has struck

exactly the right balance under those Establishment Clause

principles which apply to prayers at school-related public

events:

How, then, does a school accommodate

religious expression without commanding it?

... the answer is simply it is to be “permitted.”

Not required. Not commanded. Not even

suggested. Simply permitted. If students, or

other private parties, wish to speak religiously

while in school or at school-related events, they

may exercise their First Amendment right to do

so.

Chandler, 180 F.3d at 1264 (describing the position of the

Defendant school board, which position the court held to be

correct).

The Chandler court spoke other strong words on this

point, stating “It would be easy simply to banish prayer from

our public institutions, but this would be not only

constitutionally incorrect, but also fundamentally unfair to our

society.” /d. Furthermore, the Chandler court called

permitting students to pray a “constitutional requirement.” /d.

What the Adler // court found to be a constitutional infirmity,

the Chandler court correctly characterized as a constitutional

requirement. Therefore, if the Adler // court was right about

the guidelines’ purpose and effect, the guidelines are

quintessentially constitutional. They enable the school district

to fulfill its constitutional duty and they protect the rights of

all. Similarly here, the Football Pre-Game Policy is

quintessentially constitutional because it allows Santa Fe ISD

to fulfill its constitutional duty and it protects the rights of all.

15

Only one thing remains to be said about the more

wooden Lemon approach of the Adler 1] court (since we are

for the moment exploring how the guidelines at issue there

and the Football Pre-game Policy at issue here should fare

under this approach). It may seem strange to say that

“permitting prayer” serves a “secular” purpose. After all,

prayer is not secular. However, there are several ready

answers. The first answer is that this policy neither advances

nor inhibits religion. It ensures neutrality toward religion.

That is a secular purpose. (Although the neither-advances-

nor-inhibits paradigm is usually associated with the effect

prong, this same paradigm has been applied to the purpose

prong and seems to shed light here. See, e.g., Abington Sch.

Dist. v. Schempp, 374 U.S. 203, 222 (1963); and Agostini v.

Felton, 521 U.S. 203, _, 117 S. Ct. 1997, 2010 (1998).)

The second answer is provided by the forum analysis

approach discussed by Judge Jolly in his Santa Fe panel

dissent: providing a neutral forum for speech serves a secular

purpose. Santa Fe, 168 F.3d at 824-36 (Jolly, J., dissenting).

Ill. THE PROPER APPROACH UNDER LEE FV.

WEISMAN

The Santa Fe court also missed the mark on Lee v.

Weisman. It held that the Football Pre-game Policy was

unconstitutional despite being offered under a “pure Clear

Creek Prayer Policy.” Santa Fe, 168 F.3d at 822. In other

words, the policy involved nonsectarian, nonproselytizing

prayer such as had been upheld (at graduations) in the Clear

Creek I] case under various analyses, including a Lee analysis.

Thus, the Santa Fe court believed that the Football Pre-game

Policy was unconstitutional under Lee. But a proper

understanding of the principles of Lee leads to the conclusion

that the Football Pre-Game Policy is constitutional.

In Lee, Justice Kennedy expressed the same concern

that Justice O’Connor expressed in Kiryas Joel (see above)

16

that Establishment Clause principles be utilized in case-

category-fact-specific manner:

These dominant facts mark and control the

confines of our decision: State officials direct

the performance of a formal religious exercise at

promotional and graduation ceremonies for

secondary schools. Even for those students who

object to the religious exercise, their attendance

and participation in the state-sponsored religious

activity are, in a fair and real sense, obligatory,

though the school district does not require

attendance as a condition for receipt of the

diploma.

This case does not require us to revisit

the difficult questions dividing us in recent

cases, questions of the definition and full scope

of the principles governing the extent of

permitted accommodation by the State for the

religious beliefs and practices of many of its

citizens. See County of Allegheny v. American

Civil Liberties Union, Greater Pittsburgh

Chapter, 492 U.S. 573 (1989); Wallace v.

Jaffree, 472 U.S. 38 (1985); Lynch v. Donnelly,

465 U.S. 668, (1984). For without reference to

those principles in other contexts, the

controlling precedents as they relate to prayer

and religious exercise in primary and secondary

public schools compel the holding here that the

policy of the city of Providence is an

unconstitutional one. We can decide the case

without reconsidering the general constitutional

framework by which public schools’ efforts to

accommodate religion are measured. ... The

‘ government involvement with religious activity

in this case is pervasive, to the point of creating

a state-sponsored and state-directed religious

17

exercise in a public school. Conducting this

formal religious observance conflicts with

settled rules pertaining to prayer exercises for

students, and that suffices to determine the

question before us.

Lee at 596-97 (emphasis added).

Thus, at bottom, the principles of Lee could be

considered the same as the principles of Lemon. However,

there is more that can profitably be gained by looking at the

instant case through the lens of Lee. First, we should take

Justice Kennedy’s admonition seriously not to ignore the each

case’s context. Applying this principle to Lee itself means

that if the dominant facts are not present, various prayers or

prayer policies could very well be constitutional. In other

words, Lee is deliberately self-limiting. This is evident from

Justice Kennedy's own words. Justice Kennedy wrote: “We

recognize that, at graduation time and throughout the course

of the educational process, there will be instances when

religious values, religious practices, and religious persons will

have some interaction with the public schools and their

students.” Jd. at 598-99.

These words take on new meaning when one stops to

think of examples. Here we are not dealing with graduation

time. Therefore, we need only imagine examples of religious

values, practices and persons interacting public schools and

their students at other times throughout the educational

process.

An example of religious values, practices and persons

interacting with public schools students would be students

encountering a sidewalk evangelist on a public sidewalk near

their school. The evangelist’s target audience is specifically

school students, but the activities do not implicate the school.

But the Football Policy at issue here is an example of

religious values, practices and persons interacting with public

schools throughout the educational process. Here, the schools

sponsor an event that involves students, parents, other

18

relatives, and the general public. It is in a very real sense an

event of the entire community. If, in fact, the students decide

to have a speaker, and if in fact, the speaker decides on his or

her own initiative to include a religious sentiment, that is

protected speech.

Furthermore, football games, as the Santa Fe

court points out, are not the unique, once-in-a-lifetime

event that graduation is. Santa Fe, 168 F.3d at 822-23.

In Lee, Justice Kennedy described the multiplicity of

unique characteristics of graduation ceremonies. Lee,

505 U.S. at 595. It was because of these characteristics

and the high cost of forfeiting this unique experience

that Justice Kennedy wrote that the graduation

ceremony was “in a fair and real sense obligatory.” Id.

at 586. Whatever place high school football games

may have in Santa Fe or any other community, they do

not partake of the characteristics that Justice Kennedy

so eloquently described. Without the same obligatory

nature of the event, the principles of Lee indicate the

constitutionality, not the unconstitutionality of the

football prayers.

Another Lee principle also shows that the Football

Policy is constitutional. The Lee Court explained that

psychological coercion would likely occur in “a state-

sanctioned religious exercise.” /d. at 597. According to the

Court, the entire graduation ceremony was not the state-

sanctioned religious exercise; rather the prayer itself was the

state-sanctioned religious exercise. /d. at 594. If there is no

state-sanctioned religious exercise there is no need to be

concerned about the state psychologically coercing anyone.

And the Lee Court clearly stated that it was clergy-led state-

mandated prayer that constituted a state-sanctioned religious

exercise. /d. at 597. In the instant case there is no state-

mandated prayer and no clergy-led prayer. Therefore, there is

no state-sanctioned religious exercise and no concern over

psychological coercion.

19

Thus, one sees that, whether analyzed under the

principles of Lemon or the principles of Lee, Santa Fe ISD’s

Football Pre-game Policy is clearly constitutional. Amici urge

this Court to reject the largely unarticulated and muddled

approach of the Santa Fe court. Instead, this Court should

apply a principles-not-prongs approach to the case before it.

Amici commend the Chandler analysis to this Court as a

paradigm of the proper approach. By adopting the Chandler

approach, this Court will not only declare the constitutionality

of the Policy at issue in this case, it will also clarify for the

federal courts the proper approach to the myriad of

Establishment Clause cases they encounter.

IV. THE FIFTH CIRCUIT’S NEW ESTABLISHMENT

CLAUSE TEST

In contrast to the approach of the Chandler court, the

Fifth Circuit Court of Appeals, in the present case, has

adopted a dangerous new “legal test” that is not really legal at

all. The Fifth Circuit has decided that public prayers will now

be subjected to a “solemnization test.” In holding prayers at

football games unconstitutional, the court wrote “[t]he prayers

are to be delivered at football games—hardly the sober type

of annual event that can be appropriately solemnized with

prayer.” Doe v. Santa Fe Indep. Sch. Dist. 168 F.3d 806, 823

(emphasis in the original).

The ramifications of such a test are startling to say the

least. This country will face years of litigation in which

prayers at various public events will be challenged. Event

after event will have to be categorized as either solemnizable

or non-solemnizable. As more and more events are

categorized, litigants will try to persuade judges that the event

over which they are fighting is similar to or different from one

or another event upon which some other judge has already

ruled. Thus, they will argue, the new event should either be

characterized as solemnizable or non-solemnizable,

depending on what side of the issue they are on. And in all of

20

this, judges will have no legal principles to guide them—it

will all be the judge’s opinion (no doubt camouflaged as

much as possible in legalese and precedent to try to give the

appearance that principles are being invoked). This is not

what American’s religious liberties should depend upon.

V. THE FIFTH CIRCUIT’S ANALYSIS CREATES

HOSTILITY, NOT NEUTRALITY, TOWARD

RELIGION

The Fifth Circuit opinion in Santa Fe appears to be

driven by distaste for its own decision in Jones v. Clear

Creek, 977 F.2d 963 (5" Cir. 1992) (Clear Creek II), and for

this Court’s decision in Bd. Of Educ. Of Westside Community

Sch. v. Mergens, 496 U.S. 248 (1990), as well. For example,

the court wrote:

There is, moreover, a crucial distinction

between the speech involved in Mergens and the

speech that SFISD’s policy would allow. In

Mergens, the Court held that permitting the

Christian student organization to meet on school

grounds after class and to recruit members

through the school newspaper, bulletin boards,

and public address system, did not violate the

Establishment Clause. Thus, the organization

was not permitted to deliver a religious message

directly to the student body. The religious

organization did not use any of the various

methods of communication controlled by the

school to proselytize—or to deliver religious

messages of any nature—but rather confined

such activities to meetings held after class with

virtually no trace of governmental imprimatur.

Clear Creek II took Mergens one baby step

closer to the brink, allowing delivery of prayer

to the student body but only if such prayer were

21

nonsectarian and nonproselytizing. SFISD’s

July Policy, however, would plunge over the

cliff, by permitting students to present overtly

sectarian and proselytizing religious prayers to a

group of students clearly assembled at the

behest of the government.

Santa Fe, 168 F.3d at 821, n.11.

The language of taking “Mergens one baby step

closer to the brink” implies (if not more than implies)

that Mergens itself was headed in a dangerous

direction. Yet for this court to have decided Mergens

in the opposite manner would have been to treat

religious students differently than all other students.

The Santa Fe court also went out of its way in

several passages to point out that it had no choice but

to follow Clear Creek I]. For example, the court

noted:

In beginning our analysis, it is well to note that

our role is necessarily limited to elucidating our

prior precedent in the light of its context and

such subsequent clarifications as the Supreme

Court has announced. See Hogue v. Johnson,

131 F.3d 466, 491 (Sth Cir. 1997) (“One panel

of this Court may not overrule another [absent

an intervening decision to the contrary by the

Supreme Court or the en banc court. . .}.”), cert.

denied, US. _,118S. Ct. 1297 (1998).

Santa Fe, 168 F.3d at 814.

Indeed, some passages from the court’s opinion do not

merely objectively state that it is bound by Clear Creek I/, but

rather appear to engage in sarcasm or drip frustration. Several

examples illustrate this:

22

More to the point, we now conclude, in

obeisance to the ineluctable precedent of Clear

Creek II, that a knock-off of a Clear Creek

Prayer Policy that does not limit speakers to

nonsectarian, nonproselytizing invocations and

benedictions violates the dictates of the

Establishment Clause.

Santa Fe, 168 F.3d at 813.

And again, we read:

Only the combination of the factors relied on in

Clear Creek 1]—that the prayer was student-led

and nonsectarian, nonproselytizing—saved that

school district’s graduation prayers from being

anathematized a “formal religious exercise” for

the purposes of Lee 's Coercion Test. Cf. Lee,

505 U.S. at 588-90 (holding nonsectarian,

nonproselytizing graduation prayer delivered by

rabbi was “formal religious exercise”). Again,

because sectarian and proselytizing prayers are

by their very nature designed to promote a

particular religious viewpoint rather than

solemnize an otherwise purely secular event,

they cannot find sanctuary in the tightly

circumscribed safe harbor of Clear Creek //] and

thereby avoid the appellation “formal religious

exercise.”

Santa Fe, 168 F.3d at 818 (emphasis original).

Two final examples further demonstrate the

attitude of the Santa Fe court:

In sum, our Clear Creek I] opinion explicitly —

and (we are bound by stare decisis to

acknowledge) correctly — relies on Clear Creek

ISD’s nonsectarian, nonproselytizing

23 | 24

restrictions to dodge the outcome otherwise the messages of the Chief Executive; the

dictated by Lee. proclamations making Thanksgiving Day a

holiday; “so help me God” in our courtroom

Santa Fe, 168 F.3d at 822. oaths— these and all other references to the

Almighty that run through our laws, our public

Whether or not we agree with Clear Creek II's rituals, our ceremonies would be flouting the

conclusion that the student-led graduation First Amendment. A fastidious atheist or

prayers do not transgress the Establishment agnostic could even object to the supplication

Clause even though they do not constitute with which the Court opens each session: “God

private speech, we are bound by its judgment save the United States and this Honorable

unless and until this Court reconsiders the Court.”

matter en banc or the Supreme Court holds

otherwise. Similarly, in his dissenting opinion in Allegheny Co. vy.

Greater Pittsburgh ACLU, 492:'U.S. 573 (1989), Justice

Santa Fe, 168 F.3d at 821, n.12. | Kennedy surveyed many of this Court’s statements on

Distaste for Clear Creek I] and especially for Mergens hostility. In the process, he noted that:

smacks of the hostility towards religion that this Court and

various individual Justices have repeatedly said is not

appropriate in this country. In Zorach v. Clauson, 343 U.S.

306, 312-13 (1952), this Court noted:

Rather than requiring government to avoid any

action that acknowledges or aids religion, the

Establishment Clause permits government some

latitude in recognizing and accommodating the

The First Amendment, however, does not say

that in every and all respects there shall be a

separation of Church and State. Rather, it

studiously defines the manner, the specific

ways, in which there shall be no concert or

union or dependency one on the other. That is

the common sense of the matter. Otherwise the

state and religion would be aliens to each

other——hostile, suspicious, and even unfriendly.

Churches could not be required to pay even

property taxes. Municipalities would not be

permitted to render police or fire protection to

religious groups. Policemen who helped

parishioners into their places of worship would

violate the Constitution. Prayers in our

legislative halls; the appeals to the Almighty in

central role religion plays in our society. Lynch

v. Donnelly, supra, at 678; Walz v. Tax Comm'n

of New York City, supra, at 669. Any approach

less sensitive to our heritage would border on

latent hostility toward religion, as it would

require government in all its multifaceted roles

to acknowledge only the secular, to the

exclusion and so to the detriment of the

religious. A categorical approach would install

federal courts as jealous guardians of an

absolute “wall of separation,” sending a clear

message of disapproval. In this century, as the

modern administrative state expands to touch

the lives of its citizens in such diverse ways and

redirects their financial choices through

programs of its own, it is difficult to maintain

25

the fiction that requiring government to avoid

all assistance to religion can in fairness be

viewed as serving the goal of neutrality.

Allegheny Co., 492 U.S. at 657-58.

One opinion of this Court from which Justice Kennedy

quoted in Allegheny Co is particularly worth repeating here:

It is said, and | agree, that the attitude of

government toward religion must be one of

neutrality. But untutored devotion to the

concept of neutrality can lead to invocation or

approval of results which partake not simply of

that noninterference and noninvolvement with

the religious which the Constitution commands,

but of a brooding and pervasive devotion to the

secular and a passive, or even active, hostility to

the religious. Such results are not only not

compelled by the Constitution, but, it seems to

me, are prohibited by it.

Neither government nor this Court can or

should ignore the significance of the fact that a

vast portion of our people believe in and

worship God and that many of our legal,

political and personal values derive historically

from religious teachings. Government must

inevitably take cognizance of the existence of

religion. ...

Abington Sch. Dist. v. Schempp, 374 U.S. 203, 306 (1963)

(Goldberg, J., concurring).

Hostility toward religion is no more permissible in the

federal judiciary than it is in any other branch of the federal

government or in state and local governments. In fact, it is

even less acceptable, for it is the judicial branch that must

adjudicate Establishment Clause disputes. No citizen in this

26

nation can expect proper results to such disputes if the federal

judiciary is hostile toward religion.

Therefore, this Court should not adopt the test of a

court of appeals panel that is by all appearances hostile to

religion, to its own precedents, and to the precedents of this

Court. (As we shall see below, whether it is hostile to the

precedent of this court or not, it has in any event misapplied

them.)

VI. THE PROBLEMS WITH THE

SOLEMNIZATION TEST

Whether or not this distaste and hostility can be read

between the lines, there is little doubt that the results are the

same as if it exists. Santa Fe and Clear Creek // are in direct

conflict. As noted above, this was the view of Judge Jolly and

the six judges that signed on to his dissent from the Denial of

Rehearing En Banc. Doe v. Santa Fe Ind. Sch. Dist., 171 F.3d

1013 (1999). Judge Jolly wrote, “The majority opinions tn

Santa Fe and Jones v. Clear Creek Independent Sch. Dist.,

977 F.2d 963 (5" Cir. 1992), are so clearly in conflict with

each other that school districts within our jurisdiction will

have no guidance on how to interpret our confused

precedent.” /d. at 1015.

This adds to the appearance that the Santa Fe panel

was hostile to the Clear Creek // decision and was determined

to limit it to as narrow a field as possible. But the only way to

do this was to ignore the principles that animate Clear Creek

/1 and emphasize solemnization. As noted previously, the

Santa Fe court wrote, “[t}he prayers are to be delivered as

football games—hardly the sober type of annual event that

can be appropriately solemnized with prayer.” Santa Fe, 168

F.3d at 823 (emphasis in the original).

The Santa Fe court went on to write:

Regardless of whether the prayers are selected

by vote or spontaneously initiated at these

27

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 1] 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 SFISD’s alternative Clear

Creek Prayer Policy can be extended to football

games, irrespective of the presence of the

nonsectarian, nonproselytizing restrictions.

ld.

It is true that the Santa Fe court's reliance upon

solemnization is traceable to the Fifth Circuit's decision in

Doe v. Duncanville Ind. Sch. Dist., 70 F.3d 402 (5" Cir.

1995). But at least in Duncanville, solemnization was just

one of several factors the court looked at. Nonetheless, the

seed was planted. To the extent that the Duncanville and

Santa Fe courts emphasized that graduation is a unique event,

they stood this Court's decision in Lee v. Weisman, 505 U.S.

577 (1992) on its head.

In Lee, the fact that graduation is a unique event

weighed against the constitutionality of the prayers, not in its

favor. As noted previously, Justice Kennedy wrote:

These dominant facts mark and control the

confines of our decision: State officials direct

the performance of a formal religious exercise at

promotional and graduation ceremonies for

secondary schools. Even for those students who

object to the religious exercise, their attendance

and participation in the state-sponsored religious

activity are, in a fair and real sense, obligatory,

though the school district does not require

28

attendance as a condition for receipt of the

diploma.

Id. at 586. If the constitutionality of prayers at graduation can

be upheld after Lee, as they were in Clear Creek /1, then

prayers at less unique events should be less problematic, not

more problematic. And a Policy that merely allows for the

possibility of such prayers should be even less problematic.

Somehow, the Duncanville and Santa Fe courts not

only misunderstood this Court’s discussion of the significance

of graduation in Lee, it also misconstrued what the Clear

Creek II court said about solemnization of graduation. What

the Clear Creek I] court said was this: We accept Clear Creek

ISD’s assertion that solemnization was a secular purpose for

the prayer and also found solemnization to be the primary

effect. Clear Creek 11,977 F.2d at 966-67. What the Clear

Creek I] court did not say was this: the only acceptable

secular purpose or primary effect is solemnization.

This points to the first major problem with Santa Fe’s

solemnization test. The court ignored the other purposes

offered by the Santa Fe ISD. The court acknowledged that

the school district proffered the following purposes for pre-

game message: “to solemnize the event, to promote good

sportsmanship and student safety, and to establish the

appropriate environment for the competition.” Santa Fe, 168

F.3d at 812 (quoting Santa Fe ISD’s Football Prayer Policy).

Yet every purpose except solemnization is completely missing

from the court’s analysis.

This bodes ill for any and every other event which

involves any public facility, official, or other involvement.

This Court should roundly declare that solemnization is not

the only acceptable secular purpose nor primary effect. As

long as this Court continues to use the much criticized test

from Lemon v. Kurtzman, 403 U.S. 602 (1971), it should at

least make it clear that Lemon will not be narrowed even

further. Any secular purpose must continue to satisfy Lemon's

29

first prong in prayer cases, not merely the single secular

purpose of solemnization.

However, there is a second problem with the Santa Fe

court’s solemnization test. On what grounds can the court say

that football games cannot be solemnized? The grounds can

only be one thing—the court’s opinion. There is no legal

principle involved here.

Surely different people can hold different views about

this issue. Yet the Santa Fe court has declared that as a

matter of constitutional law, football games cannot be

solemnized. The Framers of our Constitution would be

surprised to find any such principle lurking in their

handiwork.

As amici noted at the beginning of this brief, all sorts

of prayers are now at risk in this country. What other events

may some other court now declare to be “hardly the sober

type of . . . event that can be appropriately solemnized with

prayer”? Santa Fe, 168 F.3d at 823.

This is not what Establishment Clause jurisprudence

should be about in this country. After all, as Justice Douglas

said, in a much quoted passage from Zorach v. Clauson, 343

U.S. 306, 313 (1952), “We are a religious people whose

institutions presuppose a Supreme Being.”

Therefore, this Court should flatly reject the

“solemnization test” employed by the Santa Fe court. This

Court should avail itself of this opportunity to strengthen and

clarify its Establishment Clause jurisprudence. It should not

approve Santa Fe’s jurisprudence of hostility. This Court

should slam the door on a “jurisprudence” that is nothing

more than judges’ opinions as to what events they think are

solemnizable.

30

CONCLUSION

For the foregoing reasons, the Fifth Circuit's decision

should be reversed. .

Respectfully submitted

this 29" day of December, 1999.

Poca CoHlaly

Counsel of Record for Amici Curiae

The National Legal Foundation

11521-E Midlothian Turnpike

Richmond, VA 23235

(804) 897-2340