In Texas, some say football is religion.' If so, it has company. The United States is the most religiously diverse country in the world, with more than 1,500 different religious sects.' This religious diversity makes individuals of different sects highly protective of their religious heritage. Thus, the issue of prayer in schools produces heated emotions.3 According to the American Civil Liberties Union, not even intensely debated affirmative action cases can hold a candle to school prayer in terms of the amount of public response generated.' The First Amendment, which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,"5 is the controlling constitutional provision in the prayer in school debate. The simplicity of the First Amendment language belies the complex arguments and heated debate that surround its meaning.
Recently, school district policies that allow for student-- initiated, student-selected prayer at school-sponsored events have dominated the discourse on school prayer. Within four years of the Supreme Court's decision in Lee v. Weisman,' five different federal circuits decided cases involving student-selected, student-initiated graduation prayers.' The factual scenarios of these five graduation prayer cases are nearly identical, yet the decisions fall on both sides of the Establishment Clause wall! The appellate courts applied all three of the tests that have appeared in the Supreme Court's Establishment Clause decisions over the past ten years.9 The Supreme Court did not depart from this trend when it dealt with the issue this year in Santa Fe Independent School District v. Doe. " The Lemon test, the endorsement test, and the coercion test surfaced once again. While the application of these tests may give the appearance of more stringent and objective judicial scrutiny, the specific tests employed do not seem to be the determining factors in the court decisions." Rather, the courts appear to interpret the three tests in a manner that reinforces the philosophy of the particular judge applying the tests." This phenomenon renders Establishment Clause jurisprudence a morass of conflicting decisions.
The Supreme Court's decision in Santa Fe reaffirmed that the principles endorsed in Lee are a proper guide for determining the constitutionality of prayer at school functions, but the Court employed an endorsement analysis to reach its decision. The Court's failure to define a particular test as controlling or to refine the parameters of what constitutes constitutionally acceptable forms of student-initiated, student-selected speech leaves the public thirsting for more definite lines. Ambiguous definitions and inconsistent standards are frustrating to school districts attempting to craft policies that comply with Establishment Clause jurisprudence." As the Fifth Circuit recently observed, "[W]hen we view the deceptively simple words of the Establishment Clause through the prism of the Supreme Court cases interpreting them, the view is not crystal clear.""4 Unless the Supreme Court establishes a more concrete standard, schools will have to continue to devote substantial amounts of time and resources to Establishment Clause controversies.
An inspection of the Justices' opinions in the public forum case of Capitol Square Review and Advisory Board v. Pinette" offers a unique opportunity to construct a clear benchmark in Establishment Clause jurisprudence that will aid school districts and other governmental entities in developing constitutionally viable policies. The approaches to private expression in public forums derived from Justice Scalia's plurality opinion and Justice O'Connor's concurrence come together through the principles of the public forum doctrine to cast a light on the Establishment Clause puzzle.6
In Pinette, the plurality suggests a per se rule that allows a governmental entity to avoid an Establishment Clause violation when religious speech is purely private and occurs in a traditional or designated public forum and it is publicly announced and open to all on equal terms. …