Wherever Madelyn Murray O’Hair currently resides, it’s a safe bet she isn’t happy. The Texas atheist who fought school prayer all the way to the Supreme Court in 1963 may be gone, but school prayer is still alive and kicking in the courts, courtesy of another Texas case, Santa Fe I.S.D. vs. Doe, brought before the Supreme Court for a full hearing. I’ve been brought to court, too, for a little pre-game prayer of my own – on behalf of our team, the A.C.L.U. of Texas. On this bleak April day in D.C., we’re up against not just the administration of a small school district near Galveston, but also the well-oiled political machine of attorneys, consultants, and politicians – including Attorney General John Cornyn – that has attached itself to the case. This morning, they’ll make their final pitch to the Justices to let Santa Fe students conduct public, school-sanctioned prayer before school football games.
Standing in a bitterly cold early morning wind, I visualize the Christian Coalition pinning long-shot hopes on its chosen attorney, Jay Seculow of the American Center for Law and Justice. Seculow (also a syndicated talk-radio host) and his colleagues at the A.C.L.J. may be mediocre juris-prudes, but they are networkers of the highest order, linking a constellation of religious-right lobbying groups and AM-radio ministries to fund an activist, conservative Christian legal strategy.
This will not be Seculow’s first time before the Supreme Court, nor his last. In fact, the A.C.L.J. occasionally takes a case we might consider taking at the A.C.L.U. – but mostly they represent litigious cranks, devout defendants seeking legal protection for their “religious values.” These might be state workers canned for spending too much time preaching the Good News at the water cooler, or landlords who land in court for refusing to rent a house or apartment to a gay couple.
Once inside, I think back on the history of the case. What began as a tempest in a teacup in 1995 quickly became a Texas-style Jihad, when, faced with parent criticism, school officials dug in and refused to change their policy of student-led prayer before games. That got the attention of Pat Robertson’s Christian Coalition – and the Republican Party of Texas, which has made school prayer a plank in its official platform. Santa Fe school officials whipped up a growing fervor of religious intolerance, where non-fundamentalist Christian or other religiously incorrect kids were identified, ostracized, and even threatened – until some of their parents banded together and fought back.
John Cornyn stands to present his petition to the Supremes. His presence (along with a supportive amicus brief from Governor Bush) lends considerable legitimacy to the cause. School prayer is no longer just a wink-and-a-nod between conservatives and their elected officials – here’s the state’s highest law enforcement official defending it before the U.S. Supreme Court. To think that Cornyn might be the next U.S. Attorney General under a Shrub Administration causes my eyes to drift a little – from the vacant gaze of Justice Clarence Thomas all the way up to the gaudy ceiling of the Court.
As Jay Seculow starts to speak, I’m reminded of his radio personality, arrogant and disingenuous. Since school policy requires students to vote for a representative to make a “message and/or prayer” over the public address system, Seculow argues, we have a quintessential expression of student-led free speech in this case, and not state-administered religion. When the Justices ask him if students could curse or preach that “religion is bunk” in that moment of prayer, Seculow insists – all evidence to the contrary – that they could.
Asked the same question, Cornyn just blinks and says students could say anything without punishment, provided that it is “appropriate.” But the Justices are skeptical. After some particularly harsh questions by Justice Ruth Bader Ginsberg, Seculow abruptly stops mid-sentence and snaps his notebook shut. “I see I have run out of my time,” he says, and sits down.
Finally, Anthony Griffin, a longtime Texas civil liberties litigator, presents the case of the aggrieved students. The pervasiveness of the proselytizing atmosphere in the district, he argues, is the crucial lens through which to consider the case. Administrators recruited student council chaplains to lead prayers at all meetings and athletic events, encouraged Christian prayers at graduation and before every football and baseball game, selected a clergyman to conduct a subsidized service, distributed Gideon Bibles, and encouraged and preferred religious student clubs.
I leave the court feeling confident of the Justices’ favorable opinion in June, and proud of the A.C.L.U. team – only to be stopped short by a disheartening scene on the steps. Throngs of Jay Seculow supporters are crowding the plaza, many clustered around a battery of network TV cameras. Pro-prayer activists began their grandstanding at the crack of dawn with giant, rough-hewn crosses on wheels and semi-literate handwritten posters on construction paper. They’re still wheeling around.
They are organized, passionate, and persistent – and now they have my Attorney General and Governor behind them. I have to consider for a moment the worst-case scenario: that one day soon, the Establishment Clause will finally be buried once and for all by the Christian Coalition and their political allies. How would it change life in Texas, I wonder, to have the wall between church and state finally toppled? Will religion adapt to a secular world? Or will the cumulative effect of children praying before every high school football contest everywhere in Texas somehow change the sacred sport, sublimate it, bring it closer to God?
I doubt it. It’ll always be about the weekly deification of young stars, especially the sexy quarterbacks and their violently loyal linemen, and the prettiest cheerleaders – even, god forgive us, the cheerleaders with the overly zealous mothers who plot to kill their daughters’ competitors at summer try-outs. It’s the moment of violence – arrived at last, after a hard week of frustration and anticipation – that we celebrate in that pre-game moment of silence.
Patrick Burkart is media researcher and a board member of the A.C.L.U. of Texas.