Freedom of Religion – Part 2

Church Law and Tax 1989-07-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Church Law and Tax 1989-07-01 Recent Developments

Freedom of Religion

Are invocations delivered before public high school football games legally permissible? No, concluded a federal appeals court. Between 1947 and 1986, a Protestant minister delivered an invocation prior to home games at a public high school in Georgia. When a parent complained that this practice violated the “nonestablishment of religion” clause of the first amendment, the school adopted an “equal access” plan whereby invocation speakers were selected randomly among students, parents, and faculty. Ministers were no longer eligible to give invocations. Even this plan was not acceptable to the complaining parent, who filed a lawsuit challenging the constitutionality of the modified “equal access” plan. A federal district court ruled that the equal access plan was not unconstitutional “on its face,” and the parent appealed to a federal appeals court. The appeals court observed that in assessing the constitutionality of the school’s plan under the first amendment nonestablishment of religion clause, three questions must be asked—(1) whether the school had a secular purpose for adopting the equal access plan, (2) whether the plan’s primary effect is one that neither advances nor inhibits religion, and (3) whether the plan results in excessive entanglement of government with religion. The school’s plan, noted the court, violates the first amendment “if it fails to meet any of these three criteria.” The court concluded that the equal access approach to pregame invocations violated the nonestablishment of religion clause since it violated both the first and second criteria. The court observed that the school’s refusal to employ “wholly secular invocations makes it very clear that [its] actual purpose in having pregame invocations was religious.” It added that “the conclusion is inescapable that the religious invocation conveys a message that the school endorses the religious invocation.” Further, “the equal access plan places those attending football games in the position of participating in a group prayer.” The school defended the legality of the equal access plan on the grounds that the invocations (1) “occur outside the instructional environment of the classroom,” (2) “do not invoke the teacher-student relationship,” (3) “are given at public events at which attendance is entirely voluntary,” (4) “constitute a de minimis [i.e., insignificant] violation of the establishment clause because they last 60 to 90 seconds,” and (5) are similar to the Nebraska practice of opening all sessions of the state legislature with prayer—a practice upheld by the United States Supreme Court in 1983. The appeals court rejected all of these contentions. The appeals court decision is binding (unless modified or reversed by the United States Supreme Court) in the eleventh federal judicial circuit (which includes the states of Alabama, Georgia, and Florida). Jager v. Douglas County School District, 862 F.2d 824 (11th Cir. 1989).

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