Judicial Line-Drawings

The editors of the New York Times are worried about the “muddle” over “just where the line is drawn on school-sponsored prayer.” Judicial line-drawing in church-state questions is an exceedingly delicate business. A Texas public school district let students lead prayer over the public address system before high school football games. The Times draws a very bright line against that: “The practice plainly breaches the First Amendment’s wall of separation between church and state, and the [Supreme Court] should not hesitate to say so.” Earlier, the Fifth Circuit Court of Appeals drew a zigzag line, declaring prayers at football games unconstitutional while allowing them at commencement exercises because the latter are “singularly serious.”

The editors favor a “principled” position that would compel conformity to the exclusion of all public prayer since such prayer creates “pressure for religious conformity.” This is especially the case with student-led prayer, they say, “given how susceptible schoolchildren are to peer pressure and how seriously Texans take football.” The Supreme Court has agreed to decide an appeal from the Fifth Circuit. It appears that that august body will have to determine whether Texans are more serious about commencement exercises than about football. The Fifth Circuit seems to take the position that, the more serious the occasion, the more allowance should be made for prayer, while the view of the Times is that nonserious prayer is less threatening.

As aforesaid, drawing these lines is a delicate business. It is not clear how the Supreme Court will be able to establish the facts of the case regarding the relative seriousness of Texans about football and commencements; and, if it succeeds in that, how its findings can be applied in a judicially principled way to the rest of the country. My impression, for instance, is that most New Yorkers are distinctly unserious about football. It’s something that happens across the river in Jersey. Baseball is a different matter altogether. The conflicting constitutional doctrine here, if I understand the arguments, is that the Fifth Circuit principle would, because of their seriousness about the sport, allow New Yorkers to pray at baseball games, while the Times, precisely because of that same seriousness, would forbid it. If this sounds crazy, it is because it is crazy.

The editors say that “for mysterious reasons” the Supreme Court has agreed to review only that part of the Fifth Circuit ruling that disallowed prayer at football games, letting stand the allowance of prayer at commencements. My hunch is that there is nothing mysterious about the Court’s reasons at all. The justices want to get out of the crazy business of drawing First Amendment lines that requires them to calibrate gradations of seriousness, sincerity, and hurt feelings about the expression of religion in public. Such factors cannot be rationally determined; the Constitution has not a word to say about them; and they are not remotely pertinent to the danger of the government unconstitutionally establishing a religion. The last fifty years of the Court’s embroilment in the crazy business of drawing arbitrary lines, however, has everything to do with the infringement of the free exercise of religion, and free exercise is the entire purpose of the religion clause of the First Amendment.

If, as may be the case, the Court is finally ready to free itself from its excessive entanglement with the impossible task of monitoring the maddeningly complex dynamics of religion—and we will likely know whether it is by the end of this term—that is a most welcome development. It will leave Texans and everyone else free to be as serious as they want to be about their games, and those who object to an opening prayer will be free to dissent. During the prayer they might, for example, very ostentatiously bury their heads in the pages of the New York Times.

Sources: On Supreme Court school-prayer case, New York Times, November 26, 1999.