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"The Court distorts existing precedent to conclude that the school district's student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court's opinion; it bristles with hostility to all things religious in public life."
-Chief Justice William Rehnquist1
INTRODUCTION
A. Confusion in the Courts of Appeals
The first "right" bestowed upon the American people by the First Amendment provides: "Congress shall make no law respecting an establishment of religion... ."2 Although this phrase is plainly worded, it has beleaguered courts3 since coming into the limelight in 1947 when the Supreme Court upheld a
Board of Education resolution that provided transportation to both public and parochial school students.4 It was not until a decade and a half later that the Supreme Court handed down its first decision striking down prayer in public school.5
Since then, the Court has used a variety of theories to "cleanse" public schools of worship.6 In consequence, localities have attempted to overcome Establishment Clause challenges by crafting various types of schemes that would allow for prayer in public school.7 Upon judicial review in the federal courts,
differing policies caused a split in opinion in the circuit courts, thereby creating the need for a definitive answer from the Supreme Court.8 Recently, in Santa Fe Independent School District v. Doe,9 the Supreme Court attempted to provide an answer when it invalidated a school district's policy for prefootball game ceremonies.10
B. The Decision in Santa Fe Independent School District
The parties in Santa Fe Indep. Sch. Dist. endured a lengthy, turbulent relationship11 that came to a head in 1994 when the Santa Fe Independent School District (School District) began enacting a series of policies that permitted the recitation of invocations and benedictions at school events.12 Not more than a year later, the plaintiffs, a group of current and former school
attendees and their parents, initiated an action in the Federal District Court for the Southern District of Texas alleging that a variety of practices performed by the School District violated the Establishment Clause.13 The focus of their attack, however, was the School District's practice of allowing its students to recite religious messages at graduation ceremonies and high school football games.14 To ease...