IFAS | Freedom Writer | June/July 1993 | cases.html

Supreme Court refuses to
hear two church/state cases

By Barbara Simon

Within one week the Supreme Court decided not to review two church/state cases. The first, turned down by the Court on June 1, 1993, was a challenge to the language of the Pledge of Allegiance, which includes the language "under God." The legal effect of the Court refusing to hear a case is that the lower court ruling still stands. Strict separationists had hoped that the Lee V. Weisman (1992) ruling, which held that even so-called "non-denominational, non-sectarian prayers violate the Establishmen t Clause," would mean the end of the inclusion of "under God" in the Pledge of Allegiance. It appears that to the majority of the Court the phrase "under God" has become secularized, like creches displayed with other "secular" symbols, such as Santa Claus , reindeer, Christmas trees, and candy-striped poles [Lynch V. Donnelly (1984)].

The other case, turned down by the Court on June 7, 1993, was an appeal of Jones V. Clear Creek Independent School District (5th Circuit) decided in November of 1992. Jones was decided in response to the Court's Lee V. Weisman (1992) decision. The federal court in Jones ruled that students can vote for graduation prayer, as long as the school approves the prayer as non-sectarian and non-proselytizing. This decision thrilled Pat Robertson and his American Center for Law and Just ice (ACLJ). The ACLJ mailed a "Special Bulletin" to every public school district in the United States explaining how to inject prayer into graduation ceremonies, how to inject prayer into valedictorian addresses, and how to inject prayer into baccalaureat e services.

In response, the American Civil Liberties Union (ACLU) prepared a press release warning that Robertson's American Center for Law and Justice's "Special Bulletin" circulated misleading information. The ACLU also prepared a guide for public schools addressi ng the issue of prayer at graduation. Finding fault with the Jones decision, the ACLU wrote: "When public schools reserve time at a graduation ceremony for prayers, they violate the Constitution by putting the power, prestige and endorsement of the state behind whatever prayer is offered, no matter who offers it." The ACLU guide addressed the question: are graduation prayers constitutional if a majority of students vote to permit them? The answer was unequivocal. No. Fundamental rights cannot be s ubject to a vote.

So, many are scratching their heads trying to figure out why the Court refused to hear Jones. One explanation is that the Court may have decided to see how other circuits rule prior to reviewing it themselves. Meanwhile, the states of the fifth fed eral judicial circuit [Texas, Louisiana, and Mississippi] are bound by the Jones decision.

© 1998 Institute for First Amendment Studies, Inc.