Prayer, Football, and Civil Religion in Texas

What's up with prayer and football in Texas and across the South? The big issue during the 1999 season was not the sometimes observed prayer in the end zones by players, but prayer over the intercom before games. In midseason the U.S. Supreme Court agreed to hear a case that would decide whether such prayers were constitutional.

The case came out of the small town of Santa Fe, about 50 miles southeast of Houston. In 1995 two students at Santa Fe High School, one Mormon and one Catholic, challenged the pregame prayer as a violation of the Establishment Clause. The U.S. district judge upheld football game prayer by applying the rule from another Texas case that allowed student-led, nonproselytizing, and nonsectarian prayers at graduation ceremonies.

The U.S. Fifth Circuit Court of Appeals overturned the district judge's ruling, saying in part that football games were "Hardly the sober type of annual event that can be appropriately solemnized with prayer." Evidently, the judges on the Fifth Circuit Court don't go to many football games. If they did, they would know that in Texas, high school football is the official and established religion of the state. Nothing is more solemn and sacred to such fans.

This case illustrates several aspects to the current debate over religion and public institutions. Everyone involved in such disputes, no matter which side they are on, recognizes that under the U.S. Constitution, government can neither establish nor prohibit religious exercises. Disputes often center on which of these two violations is in question.

In the Santa Fe case the school district argued that pregame prayer is a religious liberty right of the students. As one school board member exclaimed after the board voted 5-0 to take the case to the Supreme Court after losing at the appellate level, "I think we're doing the right thing. How can you tell 17- and 18- year-old students that they can't stand up and give a message as they see fit? It's an outrage."[1]

Representing the Santa Fe schools before the Supreme Court, Jay Sekulow, of the American Center for Law and Justice, argued that the pregame policy of allowing only student-led prayer was neutral and fostered free speech. "It's a hands-off policy," he told the justices. "The individual student is the speaker."[2] Indeed, the policy required not only that the prayers be said by students, but that democratic procedures for selecting the student who would say them be implemented. The Santa Fe policy, revised in light of the appeals court decision, allowed students to vote, first on whether they wanted an invocation or an inspirational message, then on who would say the prayer or deliver the message. This was democratic in theory. In practice, however, when the election took place to choose Santa Fe High School's designated prayer, it was so poorly publicized and of so little importance to the students that only about 100 of the 1,000 who attend Santa Fe showed up to vote. "The election was a sham," one student was quoted as saying. "No one even asked if we wanted an inspirational message."[3] Still, students had been given their chance to vote.

Democratic procedures are usually not applicable in church-state cases, however, because if the activity is deemed by the courts to be unconstitutional, it does not matter if even 99 percent of the people approve of it. Constitutional rights are listed in the Bill of Rights precisely so they cannot be subject to democratic vote. Supporters of the football prayers, therefore, had to show that the activity itself was constitutional. To do this, they tried to make the case into a religious liberty issue.

The free speech/religious liberty argument that Sekulow tried to sell the Court on is based on what advocates believe is the crucial distinction--who is saying the prayer. For them, it is all a matter of whether the person doing the praying is a school official or a student. If it is a school official, then there is a state-sponsored religious activity in question. If it is a student, however, then the state is censoring speech by telling her she cannot pray before the games. But even here there was a problem, because only one student was going to be allowed to pray, and it was going to be the same student, sharing presumably the same religion (although with high schoolers, who could be sure?) for the whole season.

Richard Land of the Southern Baptist Ethics and Religious Commission usually puts great emphasis on this question of who is saying the prayer. But in this case his agency refused to sign onto a brief supporting the Santa Fe student's right to pray, because the policy did not ensure that students of other faiths would be afforded the same right to pray as the one chosen student. Curiously, Land still said, "Nevertheless, I hope and pray that the court will affirm the Santa Fe practice, understanding that the minority does not have the right to silence the majority either."[4]

In the majority opinion Justice John Paul Stevens answered the argument that the private speech rights of a student were being violated by stating why the Court did not view the pregame prayer as a private speech. He wrote, "The delivery of such a 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."[5] In short, the Court simply did not buy the argument that this was a free speech/religious liberty issue. As Stevens wrote: "We granted the district's petition for certiorari, limited to the following question: 'Whether petitioner's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause.'"[6]

There were those who agreed with the Court that this was an Establishment Clause case in keeping with other prayer cases from Engel v. Vitale (1962) to the present. The crucial question for them is not who is saying the prayer but whether the state is endorsing religion and coercing people to participate. If the state engages in either endorsement or coercion with regard to religion, a practice can be and usually is struck down as unconstitutional.

In the Santa Fe case Justice Stevens and the majority determined that any reasonable observer of the pregame prayer would likely conclude that this was a school-sponsored religious exercise. He wrote, "Once the student speaker is selected and the message composed, the invocation is then delivered to a large audience assembled as part of a regularly scheduled school-sponsored function conducted on school property. The message is broadcast over the school's public address system, which remains subject to the control of school officials." He concluded on this point, "In this context the members of the listening audience must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration."[7] In other words, the Santa Fe practice of pregame prayers would most likely be properly perceived as an endorsement of religion.

As for coercion, the district's argument was that a football game differs from the classroom in that for many students it is of merely passing interest and, of course, students are not required to attend the games. Justice Stevens countered, however, pointing out that while many students are not required to attend, many others are--the players, cheerleaders, and band members, for example. Also, there is the general social pressure to attend games, combined with the desire on the part of many in the area to be part of what in many small towns (especially in Texas) is a significant community event. They should not have to endure school-sponsored religious exercises as the cost of their attendance.[8] As Stevens wrote: "Even if we regard every high school student's decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship."[9]

Those who see this case as an Establishment Clause issue also argue that this was not a religious liberty/free speech issue, because the pregame prayer time was not an open forum. Most of the people present, all but one, had no right to say anything at all over the intercom. And even the chosen prayer was not really granted free speech, for she was not at liberty to discuss music theory (she was in the band also) or even to discuss constitutional issues.

There is a well-developed constitutional doctrine that says that once the state establishes an open forum or a limited forum, it cannot then censor speech on the basis of content. This doctrine has been used to allow religious groups the same free-speech rights as secular groups and in one case even the state funding of a religious periodical at the University of Virginia.[10] It was difficult to argue in the Santa Fe case, however, that the school had opened a limited forum. There simply was no forum for speech. Moreover, the democratic procedures set up by the school district may have actually weakened the claim that the school had created an open forum. Justice Stevens wrote, "Santa Fe's student election system ensures that only those messages deemed 'appropriate' under the district's policy may be delivered. That is, the majoritarian process implemented by the district guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced."[11]

Clearly, the religious liberty/free speech and limited forum arguments never got off the ground in this case.

But there is a second point of contention that is theological in nature. And because it is theological, it gets very little attention from the courts. Courts are not in the business of deciding theological matters. But, oddly, this issue gets little attention from evangelical Christians, who ought to be, it would seem, quite interested in theology. The question is What exactly constitutes prayer?

The district judge in the Santa Fe case had allowed football game prayer if it was nonproselytizing and nonsectarian. The designated prayer, however, closed her prayer with the words, "In Jesus' name I pray. Amen."[12] Marian Lynn Ward was just praying as she had been taught, and she had been taught as a Baptist. Is it sectarian to pray as a Baptist, in Jesus' name, as a Christian, as a theist? University of Texas constitutional scholar Douglas Laycock thinks so. "There's no such thing as a nonsectarian prayer. Whom to pray to is one of the most fundamental questions."[13]

Texas attorney general John Cornyn, acting on behalf of himself and Texas governor George W. Bush, had another take on the problem. He argued that the school district could not require that prayer be nonsectarian and nonproselytizing because this would require school districts to monitor prayers. "The majority's holding [in the Fifth Circuit Court of Appeals' ruling] that religious speech under the Santa Fe ISD graduation policy be nonsectarian and nonproselytizing requires state officials to engage in religious viewpoint discrimination," he was quoted as saying shortly after the appeals court decided to reconsider its decision to ban even nonsectarian and nonproselytizing prayer.[14]

Evangelical Christians--that is, those who believe that only the Bible is authoritative in matters of faith and who believe in a born-again experience with a risen Saviour--might well ponder whether a prayer that is not offered in Jesus' name, as instructed in Scripture, is prayer at all. But beyond determining whether prayer is ever nonsectarian, there is the additional question of when public prayer is biblically justified. There is not one verse in the New Testament advocating public prayer with nonbelievers. Not one. In fact, Christians are explicitly warned against praying in public. The only communal prayer advocated in Scripture takes place when Christians are gathered together as Christians.

Public gatherings in a pluralistic culture are not in Jesus' name. One could argue that even if every person at a Santa Fe High School football game were a born-again believer, an absurd improbability to even contemplate, they would still not be gathered in Jesus' name. Rather, they would be gathered for the purpose of watching football and cheering their team on to victory. As far as we can tell, Jesus and the authors of the New Testament saw no scenario whereby Christians should ever command a public audience for their prayers.

But what about public prayer in church or at an evangelistic meeting? Those are acts of the church, done in Jesus' name and in the proper places for prayer, according to the New Testament. A public event, at least in the way we usually use that term, is quite different.

This is not particularly a question for the courts. As public institutions, they should avoid deciding what are legitimate religious acts. Rather, Christians themselves, at least those who purport to follow the Bible, should stop praying in public unless they can derive a biblical justification that refutes Jesus' own warning against public displays of religiosity. Some may argue that while there is no explicit endorsement of public prayer outside the body of Christ, neither does the Bible prohibit such prayer. But it does. Jesus Himself, in an injunction recorded in Matthew 6:1-6, spoke forcefully against public prayer. In another passage He spoke against long prayers in public given by religious people to impress others.[15] Moreover, in every example we have of Jesus' own prayer life, He is either going off to the mountains to pray in secret or He is praying individually for someone. Nowhere, as far as we can tell, did He attempt to command an audience other than His own followers for the purpose of public prayer. First Timothy 2:8 instructs men to pray and lift up hands everywhere, but the command is given to believers. There is no implication that prayer is to be done with or in the sight of nonbelievers, as is always the case when public prayer takes place at football games and other public venues in America.

So where does the concept of public prayer come from if not from the Bible? This is the third point of contention. What religion is being promoted when citizens who do not see themselves as members of the body of Christ engage in religious acts? Put simply, they are engaging in and promoting American civil religion. Civil religion is most simply defined as the mixing of religion and nationalism, or religion and patriotism, until we can no longer tell where the one ends and the other begins.

Back in the seventeenth century the Puritans of Massachusetts Bay thought of themselves as both a body politic and, simultaneously, the body of Christ, or nearly so. They had drawn a fine theological distinction between the church and the world, but the line was easily blurred. And American Christians of many stripes have never quite gotten over this "city on a hill" notion. We know that when we gather for a ball game, we're not in church. But for just a moment we want to think of ourselves as some sort of religiously bound group of brothers and sisters. We would like to think that what binds us together is sacred.

In the Santa Fe case Texas civil religion combined the acts of football and prayer so that a community could think of itself as a quasi religious entity for one minute every Friday night during the fall. Curiously, this controversy does not take place in basketball. Why not? Because basketball has not attained a level of sacredness sufficient to include civil religious prayer. At basketball games the Pledge of Allegiance is enough civil religion for almost everyone. Same for baseball.

The most important point for believers is that when we confuse biblical faith with civil religion, we dilute the former and use the latter to create an idol of our nation or our community. In short, we wind up praying nonsectarian, nonproselytizing prayers. In short, we are praying to the god of civil religion, which is our own nation or community--in short, ourselves. With no biblical mandate for public prayer and with the risk of idolatry that accompanies acts of civil religion, serious Christians should hardly need the Supreme Court to tell us to stop engaging in prayer before football games.


Barry Hankins is assistant professor of history and church state studies at the J. M. Dawson Institute of Church State Studies at Baylor University, Waco, Texas.


*Prior to the football prayer challenge, Santa Fe schools had a deplorable record in the area of religious liberty and church-state relations. On one occasion a teacher had told a Mormon student that her religion was a cult, a statement that apparently led to harassment of the Mormon student. Another teacher banished a student alone to the schoolyard as punishment for refusing, with parental backing, to learn a religious song in sign language.


1. The graduation case was Jones v. Clear Creek Independent School District (1993).


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ENDNOTES

[1]2. "Texas School District Appeals School-Prayer Case to Supreme Court," Associated Press, Apr. 23, 1999.
[2]. Tony Mauro, "Supreme Court Expresses Skepticism About Student-Led Pre-Game Prayers," Freedom Forum Online, Mar. 29, 2000.
[3]. Scott E. Williams, "Teen Looks for Freedom from Prayer," Galveston County Daily News, Oct. 11, 1999.
[4]. Kenny Byrd, "Supreme Court Justices Hear Texas Football Prayer Dispute," ABP News (American Baptist Press), Apr. 2, 2000.
[5]. Santa Fe Independent School District v. Doe, 530 U.S. ____ (2000), p. 18.
[6]. Ibid., p. 9.
[7]. Ibid., p. 16.
[8]-
[9]. Ibid., p. 19-21. Quote on p. 20.
[10]. See Rosenberger v. University of Virginia, 115 S. Ct. 2510 (1995).
[11]. Santa Fe Independent School District v. Doe, p. 12.
[12]. "Texas Student Says Pre-Game Prayer After Federal Judge Clears Way," Associated Press, Freedom Forum Online, Sept. 7, 1999.
[13]. Osler McCarthy and Michele Kurtz, "Texas Asks Appeals Court to Rethink Prayer Ruling," Austin American Statesman, Mar. 27, 1999.
[14]. Ibid.
[15]. See Luke 20:47.

Article Author: Barry Hankins