John Paul Stevens

“ Granting only one student access to the stage at a time does not, of course, necessarily preclude a finding that a school has created a limited public forum. Here, however, 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. ”

“ In fact, as used in the past at Santa Fe High School, an “invocation” has always entailed a focused religious message. Thus, the expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy. The results of the elections described in the parties’ stipulation [20] make it clear that the students understood that the central question before them was whether prayer should be a part of the pregame ceremony. ”

“ Upon advice and direction of the high school principal, each spring, the high school student council shall conduct an election, by the high school student body, by secret ballot, to determine whether such a message or invocation will be a part of the pre-game ceremonies and if so, shall elect a student, from a list of student volunteers, to deliver the statement or invocation. The student volunteer who is selected by his or her classmates may decide what statement or invocation to deliver, consistent with the goals and purposes of this policy. ”

“ We need not wait for the inevitable to confirm and magnify the constitutional injury. In Wallace, for example, we invalidated Alabama’s as yet unimplemented and voluntary “moment of silence” statute based on our conclusion that it was enacted “for the sole purpose of expressing the State’s endorsement of prayer activities for one minute at the beginning of each school day.” ”

“ Attendance at a high school football game, unlike showing up for class, is certainly not required in order to receive a diploma. Moreover, we may assume that the District is correct in arguing that the informal pressure to attend an athletic event is not as strong as a senior’s desire to attend her own graduation ceremony. ”

“ One is the mere passage by the District of a policy that has the purpose and perception of government establishment of religion. Another is the implementation of a governmental electoral process that subjects the issue of prayer to a majoritarian vote.
The District argues that the facial challenge must fail because “Santa Fe’s Football Policy cannot be invalidated on the basis of some ‘possibility or even likelihood’ of an unconstitutional application.” ”

“ The two student elections authorized by the policy, coupled with the debates that presumably must precede each, impermissibly invade that private sphere. The election mechanism, when considered in light of the history in which the policy in question evolved, reflects a device the District put in place that determines whether religious messages will be delivered at home football games. The mechanism encourages divisiveness along religious lines in a public school setting, a result at odds with the Establishment Clause. ”

“ High school home football games are traditional gatherings of a school community; they bring together students and faculty as well as friends and family from years present and past to root for a common cause. ”

“ Therefore, even if no Santa Fe High School student were ever to offer a religious message, the October policy fails a facial challenge because the attempt by the District to encourage prayer is also at issue. Government efforts to endorse religion cannot evade constitutional reproach based solely on the remote possibility that those attempts may fail. ”

“ Thus, as we indicated in Duncanville, our decision in Clear Creek II hinged on the singular context and singularly serious nature of a graduation ceremony. Outside that nurturing context, a Clear Creek Prayer Policy cannot survive. We therefore reverse the district court’s holding that [the District’s] alternative Clear Creek Prayer Policy can be extended to football games, irrespective of the presence of the nonsectarian, nonproselytizing restrictions. ”

“ School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherants “that they are outsiders, not full members of the political community, and an accompanying message to adherants that they are insiders, favored members of the political community.” ”

“ The Chief Justice contends that we have “misconstrue [d] the nature ... [of] the policy as being an election on ‘prayer’ and ‘religion,’ ” see post, at 3—4. We therefore reiterate that the District has stipulated to the facts that the most recent election was held “to determine whether a student would deliver prayer at varsity football games,” that the “students chose to allow a student to say a prayer at football games,” and that a second election was then held “to determine which student would deliver the prayer.” ”

“ Because the dissent overlooks this case, it incorrectly assumes that a “prayer-only policy” at football games was permissible in the Fifth Circuit. See post, at 6—7.
↑ . “There are in fact several secular reasons for allowing a brief, serious message before football games–some of which [the District] has listed in its policy. At sporting events, messages and/or invocations can promote, among other things, honest and fair play, clean competition, individual challenge to be one’s best, importance of team work, and many more goals that the majority could conceive would it only pause to do so. ”

“ This policy likewise does not survive a facial challenge because it impermissibly imposes upon the student body a majoritarian election on the issue of prayer. Through its election scheme, the District has established a governmental electoral mechanism that turns the school into a forum for religious debate. It further empowers the student body majority with the authority to subject students of minority views to constitutionally improper messages. The award of that power alone, regardless of the students’ ultimate use of it, is not acceptable. ”

“ The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views. Access to a public forum, for instance, does not depend upon majoritarian consent. That principle is controlling here.” Id., at __ (slip op., at 16—17) .
Like the student referendum for funding in Southworth, this student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority. [15] Because “fundamental rights may not be submitted to vote; they depend on the outcome of no elections,” West Virginia Bd. ”

“ Every government practice must be judged in its unique circumstances ... .” Lynch, 465 U.S., at 693—694 (O’Connor, J., concurring) . Our discussion in the previous sections, supra, at 15—18, demonstrates that in this case the District’s direct involvement with school prayer exceeds constitutional limits.
The District, nevertheless, asks us to pretend that we do not recognize what every Santa Fe High School student understands clearly–that this policy is about prayer. ”

“ We stressed in Lee the obvious observation that “adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.” ”

“ Even if the plain language of the October policy were facially neutral, “the Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S., at 777 (O’Connor, J., concurring in part and concurring in judgment) ; see also Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 534—535 (1993) (making the same point in the Free Exercise context) . ”