By: Richard Braun, RulingSports.com Intern (Twitter: @RicBraun)
Last week, the University of Tennessee decided that it would continue to allow pregame prayers at Neyland Stadium. This comes on the heels of a letter they received complaining about the public prayers, calling them unconstitutional.
The Freedom From Religion Foundation (FFRF), an atheist group based in Wisconsin, wrote the letter to the university stating that having a clergyman conduct the prayer automatically gives it a non-secular purpose that advances one religion over another. Such prayer at a public university violates the First Amendment, according to the Foundation.
At issue here is whether the prayer violates the Establishment Clause of the First Amendment. The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” As part of this, no government action can include a preference for one religious sect over another. In order for a government action to be valid under the Establishment Clause, it must meet the so-called Lemon test that originated from the Supreme Court case Lemon v. Kurtzman. The Court in Lemon held that a government action is only valid under the Establishment Clause if it has a secular purpose, has a primary effect that neither advances nor inhibits religion, and does not produce excessive government entanglement with religion. As a public institution, the University of Tennessee must meet this standard.
As a result of this case, the prayers held at Neyland Stadium, or any event at any public university, have a high bar to meet to avoid being ruled unconstitutional. This issue of prayer before football games has reached the Supreme Court before in 2000 with the case Santa Fe Independent School District v. Doe. In this case, high school students at a public school in Texas would lead a prayer over the PA system before each varsity football game. In held that the prayer violated the Establishment Clause, the Court ruled that the policy to allow students to lead a public prayer before games by its terms encouraged religious messages. The prayer endorsed an “invocation,” which is a term typically used when asking for divine assistance.
Further, the Court held that “in cases involving state participation in a religious activity, one of the relevant questions is ‘whether an objective observer…would perceive it as a state endorsement of prayer in public schools.’” In this case, the Court ruled that, because of the text of the prayer, a student listening to the pregame prayer would perceive it as the school endorsing a religious message.
This previous ruling creates a sticky situation for Tennessee if they continue to hold a pregame prayer, as they intend to do. Applying the holding from Santa Fe, an objective observer could perceive a prayer led by a clergyman as the school promoting a particular religious message. Further, the actual content of the prayer is subject to intense scrutiny – any term with religious overtones would work against the school. The bar for proving that a prayer does not advance a particular religion is a high one that most public prayers do not meet.
For now, the Freedom From Religion Foundation has no plans to bring a lawsuit against the university. The FFRF has a history of bringing litigation actions to public entities all over the country, and they are often successful at it, often forcing towns and school districts to settle out of court. The FFRF also sent a letter to UT-Chattanooga asking them to stop conducting public prayers. Unlike UT, UT-Chattanooga actually complied with the request, and will instead offer a moment of silence before each game. Such a compromise might anger many, and indeed the ruling from Santa Fe has been extremely unpopular. However, for a school like Tennessee that likely wants to avoid any litigation, such a move might be in their best interests.