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Foundation For Moral Law Memorandum
Foundation For Moral Law Memorandum
Let your light so shine before men, that they may see your good works,
and glorify your Father which is in heaven. Matthew 5:16
But in some Alabama schools, one part of that tradition is missing this yearthe
opening prayer.
Several school districts have received letters from a Wisconsin-based group known as
the Freedom from Religion Foundation (FFRF), an atheist organization whose goal is
to drive religious expression out of the public arena. And right now, football stadiums
seem to be the focus of their attack.
The FFRF insists that prayers at public school football games violate the First
Amendment to the U.S. Constitution, which, they claim, mandates separation of church
and state but actually reads as follows:
The Establishment Clause does not mandate complete separation of religion from
government nor does it prohibit the public acknowledgement of God. But does the
Establishment Clause prohibit prayer at football games? Lets examine it more closely.
The meaning of the First Amendment is of crucial importance. Those who settled the
original thirteen colonies did not cross the Atlantic to get away from prayer at football
games. In 1853 the U.S. Senate Judiciary Committee conducted an exhaustive study of
the Establishment Clause and concluded that it referred to the connection with the state
of a particular religious society, by its endowment, at the public expense, in exclusion of,
or in preference to, any other, by giving to its members exclusive political rights, and by
compelling the attendance of those who rejected its communion upon its worship, or
religious observances. Nonetheless, by preventing the government from sponsoring one
church to the detriment of all others, the Founders did not wish to see us an irreligious
people.
The Reports of Committees of the Senate of the United States for the Second Session of
the Thirty-Second Congress, 1852-53, pp. 1-4. Senate Rep. No. 32-376 (1853).
(Emphasis added).
Many who support public prayer today also do not consider such prayer to be a mere
ritual or ceremony. Rather, they believe that prayer changes things. Just as prayer for
our troops helps ensure success and safety in battle, so prayer for athletes helps ensure
that they will play their best, practice good sportsmanship, and be free from injury.
Unlike the FFRF, the Foundation for Moral Law believes that student-initiated prayer
at football games does not violate the Establishment Clause and is protected by the Free
Exercise Clause and the Free Speech Clause of the First Amendment and by the Alabama
Religious Freedom Amendment. The complete ban on prayer demanded by the FFRF
would, in the Senate Committees words, spread over all the public authorities and the
whole public action of the nation the dead and revolting spectacle of atheistical apathy.
Contrary to the FFRFs one-sided and simplistic analysis, the Supreme Courts
decision in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), did not
invalidate student-initiated prayer at athletic events. Rather, the Court focused on the
extensive state involvement in the prayers. First, the schools (an intermediate school and
a junior high school) held an election, run by school officials, to determine whether a
prayer would take place at that years games. If the students voted to have prayer (as they
did), the school officials would conduct another election to select a student to lead the
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prayers. Because the elections were conducted by school officials acting in their official
capacities, the Court majority concluded that there was too much state involvement in the
student election system and, further, that the student election system insured that only
majoritarian views would be expressed.
The FFRFs references to other Supreme Court decisions are equally simplistic and
overbroad. Lee v. Weisman, 505 U.S. 577 (1992), did not invalidate all graduation
prayers, only a specific situation in which a superintendent asked a rabbi to lead a prayer
and gave him written guidelines as to what the prayer should include. Justice Souter,
joined by two other Justices, stated in a concurring opinion: If the State had chosen its
graduation day speakers according to wholly secular criteria, and if one of those speakers
(not a state actor) had individually chosen to deliver a religious message, it would have
been harder to attribute an endorsement of religion to the State. 2 Id. at 630 n.8. Even
Engel v. Vitale, 370 U.S. 421 (1962), which held that the state could not compose an
official prayer to be recited in every classroom, did not ban student-initiated prayer.
After the Santa Fe decision, the United States Court of Appeals for the Eleventh
Circuit (which includes Alabama) considered two cases involving religious speech in a
public school setting. In both cases, the Eleventh Circuit held that the religious speech did
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Schools may prohibit students from engaging in vulgar and lewd speech or advocating illegal
activity without converting the student speech into the schools message. Bethel School Dist. No.
403 v. Fraser, 478 U.S. 675, 683 (1986); Morse v. Frederick, 551 U.S. 393, 397 (2007).
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Justice Scalia, joined by three other Justices, identified a solution to the problem: All that is
seemingly needed is an announcement, or perhaps a written insertion at the beginning of the
graduation program, to the effect that, while all are asked to rise for the invocation and
benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so.
That obvious fact recited, the graduates and their parents may proceed to thank God, as
Americans have always done, for the blessings He has generously bestowed on them and on their
country. 505 U.S. at 645 (Scalia, J., dissenting).
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not violate the First Amendment. In Adler v. Duval County School Board, 250 F.3d 1330
(11th Cir. 2001), the Court held that a school board policy that permitted but did not
require a student speaker to lead a prayer over the loudspeaker at graduation exercises did
not violate the First Amendment. And in Chandler v. Siegelman, 230 F.3d 1313 (11th
Cir. 2000), the Eleventh Circuit stated:
As we examine what the Court has said concerning prayer at athletic activities and
other public school events, we may deduce the following general principles:
2. However, the Free Exercise Clause (or prohibiting the free exercise thereof) and
the Free Speech Clause (or abridging the freedom of speech) afford protection to
students rights to engage in prayer and other religious speech.
3. The school may not compel or endorse prayer or excessively involve itself in the
process of determining whether to have prayer, who should lead the prayer, and
what the content of prayer should be.
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See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 45 (2004) (Thomas, J., concurring)
(questioning application of the Establishment Clause, a federalism provision, to the states).
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6. The school policy should include a disclaimer to the effect that statements made
during this period represent the views of the speakers alone and not the official
position of the school or its personnel, and that although all are requested to be
silent and respectful during this period, no one will be assumed because of that
silence and respect to have joined in or agreed with the speech.
In an effort to preserve student prayer at athletic events in a way that does not violate
the First Amendment as the courts have interpreted it, school districts have engaged in a
variety of practices:
In one district, instead of an opening prayer, the game announcer informed the
audience that they would pause for a moment of silence. During that moment of
silence, without any prompting or direction from school officials, students and
other spectators arose and said the Lords Prayer.
In other districts, students or spectators have brought bullhorns so they could pray
without using the schools public address system.
In still others, the team (or those team members who choose to do so) gather for
prayer before the game, either in the locker room or on the field. If the team
members lead this prayer and the coach joins, that will probably be acceptable. If
the coach initiates or leads the prayer, that could be more problematic.
In sum, students may brightly shine the light of faith during school events.
A sample policy that allows for pre-game student messages, religious or otherwise as
the student may choose, is set out below for your consideration and adaptation. Compare
Adler v. Duval County School Bd., 851 F. Supp. 446, 449 (M.D. Fla. 1994) (policy on
graduation messages).
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If the selection is at random, it is possible that the selected student could give an anti-religious
message or an occultic or Satanic prayer. This is less likely if the students make the selection
through student government rather than school officials drawing names at random. Schools must
weigh that possibility against the drastic action of abolishing pre-game student speech altogether.
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Sample Athletic Event Student Message Policy
The purpose of this policy is to allow students who wish to give a pre-
game message at athletic events the opportunity to do so without
monitoring or review by school officials.
CONCLUSION
The Foundation for Moral Law presents this memorandum in a sincere effort to
protect student pre-game speech, religious or otherwise, in a manner consistent with the
United States Constitution and the Alabama Constitution as interpreted by the courts.
Nothing herein shall constitute the practice of law. Readers are encouraged to seek
competent legal advice before taking action on these matters. School officials are
encouraged to share this memorandum with their attorneys.
The Foundations attorneys, who have studied and practiced constitutional law for
many years, would be pleased to be of assistance to you and your school district. Please
feel free to call us at (334) 262-1245.