OCTOBER TERM, 1999SyllabusSANTA FE INDEPENDENT SCHOOL DISTRICT
v.DOE, INDIVIDUALLY AND AS NEXT FRIEND FOR HER MINOR CHILDREN, ETAL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTHCIRCUIT
No. 99-62. Argued March 29, 2000-Decided June 19,2000
Prior to 1995, a student elected as Santa Fe High School'sstudent council chaplain delivered a prayer over the public addresssystem before each home varsity football game. Respondents, Mormonand Catholic students or alumni and their mothers, filed a suitchallenging this practice and others under the Establishment Clauseof the First Amendment. While the suit was pending, petitionerschool district (District) adopted a different policy, whichauthorizes two student elections, the first to determine whether"invocations" should be delivered at games, and the second toselect the spokesperson to deliver them. After the students heldelections authorizing such prayers and selecting a spokesperson,the District Court entered an order modifying the policy to permitonly nonsectarian, nonproselytizing prayer. The Fifth Circuit heldthat, even as modified by the District Court, the football prayerpolicy was invalid.
Held: The District's policy permitting student-led,student-initiated prayer at football games violates theEstablishment Clause. Pp.301-317.(a) The Court's analysis is guided by the principles endorsed in
Lee v.
Weisman,505 U. S. 577. There, inconcluding that a prayer delivered by a rabbi at a graduationceremony violated the Establishment Clause, the Court held that, ata minimum, the Constitution guarantees that government may notcoerce anyone to support or participate in religion or itsexercise, or otherwise act in a way that establishes a statereligion or religious faith, or tends to do so,
id., at 587.The District argues unpersuasively that these principles areinapplicable because the policy's messages are private studentspeech, not public speech. The delivery of a message such as theinvocation here-on school property, at school-sponsored events,over the school's public address system, by a speaker representingthe student body, under the supervision of school faculty, andpursuant to a school policy that explicitly and implicitlyencourages public prayer-is not properly characterized as "private"speech. Although the District relies heavily on this Court's casesaddressing public forums,
e. g., Rosenberger v.
Rectorand Visitors of Univ. of Va.,515 U. S. 819, it isclear that the District's
291pregame ceremony is not the type of forum discussed in suchcases. The District simply does not evince an intent to open itsceremony to indiscriminate use by the student body generally, see,
e. g., Hazelwood School Dist. v.
Kuhlmeier,484 U. S. 260, 270, but,rather, allows only one student, the same student for the entireseason, to give the invocation, which is subject to particularregulations that confine the content and topic of the student'smessage. The majoritarian process implemented by the Districtguarantees, by definition, that minority candidates will neverprevail and that their views will be effectively silenced. See
Board of Regents of Univ. of Wis. System v.
Southworth,529 U. S. 217, 235.Moreover, the District has failed to divorce itself from theinvocations' religious content. The policy involves both perceivedand actual endorsement of religion, see
Lee, 505 U. S., at590, declaring that the student elections take place because theDistrict "has chosen to permit" student-delivered invocations, thatthe invocation "shall" be conducted "by the high school studentcouncil" "[u]pon advice and direction of the high schoolprincipal," and that it must be consistent with the policy's goals,which include "solemniz[ing] the event." A religious message is themost obvious method of solemnizing an event. Indeed, the only typeof message expressly endorsed in the policy is an "invocation," aterm which primarily describes an appeal for divine assistance and,as used in the past at Santa Fe High School, has always entailed afocused religious message. A conclusion that the message is not"private speech" is also established by factors beyond the policy'stext, including the official setting in which the invocation isdelivered, see,
e. g., Wallace v.
Jaffree,472 U. S. 38, 73, 76, bythe policy's sham secular purposes, see
id., at 75, and byits history, which indicates that the District intended to preserveits long-sanctioned practice of prayer before football games, see
Lee, 505 U. S., at 596. Pp. 301-310.(b) The Court rejects the District's argument that its policy isdistinguishable from the graduation prayer in
Lee because itdoes not coerce students to participate in religious observances.The first part of this argument-that there is no impermissiblegovernment coercion because the pregame messages are the product ofstudent choices-fails for the reasons discussed above explainingwhy the mechanism of the dual elections and student speaker do notturn public speech into private speech. The issue resolved in thefirst election was whether a student would deliver prayer atvarsity football games, and the controversy in this casedemonstrates that the students' views are not unanimous on thatissue. One of the Establishment Clause's purposes is to removedebate over this kind of issue from governmental supervision orcontrol. See
Lee, 505 U. S., at 589. Although the ultimatechoice of student speaker is attributable to the students, theDistrict's de-
292cision to hold the constitutionally problematic election isclearly a choice attributable to the State,
id., at 587. Thesecond part of the District's argument-that there is no coercionhere because attendance at an extracurricular event, unlike agraduation ceremony, is voluntary-is unpersuasive. For somestudents, such as cheerleaders, members of the band, and the teammembers themselves, attendance at football games is mandated,sometimes for class credit. The District's argument also minimizesthe immense social pressure, or truly genuine desire, felt by manystudents to be involved in the extracurricular event that isAmerican high school football.
Id., at 593. The Constitutiondemands that schools not force on students the difficult choicebetween attending these games and avoiding personally offensivereligious rituals. See
id., at 596. Pp. 310-313.(c) The Court also rejects the District's argument thatrespondents' facial challenge to the policy necessarily must failbecause it is premature: No invocation has as yet been deliveredunder the policy. This argument assumes that the Court is concernedonly with the serious constitutional injury that occurs when astudent is forced to participate in an act of religious worshipbecause she chooses to attend a school event. But the Constitutionalso requires that the Court keep in mind the myriad, subtle waysin which Establishment Clause values can be eroded,
Lynch v.
Donnelly,465U. S. 668, 694, and guard against other different, yet equallyimportant, constitutional injuries. One is the mere passage by theDistrict of a policy that has the purpose and perception ofgovernment establishment of religion. See,
e. g., Bowen v.
Kendrick,487U. S. 589, 602;
Lemon v.
Kurtzman,403 U. S. 602, 612. Asdiscussed above, the policy's text and the circumstancessurrounding its enactment reveal that it has such a purpose.Another constitutional violation warranting the Court's attentionis the District's implementation of an electoral process thatsubjects the issue of prayer to a majoritarian vote. Through itselection scheme, the District has established a governmentalmechanism that turns the school into a forum for religious debateand empowers the student body majority to subject students ofminority views to constitutionally improper messages. The award ofthat power alone is not acceptable. Cf.
Board of Regents ofUniv. of Wis. System v.
Southworth,529 U. S. 217. For theforegoing reasons, the policy is invalid on its face. Pp.313-317.
168 F.3d806, affirmed.STEVENS, J., delivered the opinion of the Court, in whichO'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined.REHNQUIST,
293C. J., filed a dissenting opinion, in which SCALIA and THOMAS,JJ., joined,
post, p. 318.Jay Alan Sekulow argued the cause for petitioner. With him onthe briefs were Colby M. May, James M. Henderson, Sr., Mark N.Troobnick, Walter M. Weber, Paul D. Clement, John G. Stepanovich,Thomas P. Monaghan, Stuart
J. Roth, John P. Tuskey, Joel H.Thornton, David A. Cortman, and Kelly Shackelford.
John Cornyn, Attorney General of Texas, argued the causefor the State of Texas et al. as
amici curiae urgingreversal. With him on the brief were
Andy Tay lor, FirstAssistant Attorney General,
Linda S.
Eads, DeputyAttorney General,
Gregory S.
Coleman, SolicitorGeneral,
Julie Caruthers Parsley, Deputy Solicitor General,and
Meredith B. Parenti, Assistant Solicitor General.
Anthony P. Griffin argued the cause for respondents.With him on the briefs were Douglas Laycock and Steven R.Shapiro.
**Briefs of
amici curiae urging reversal were filed forthe Christian Legal Society by
Steffen N Johnson, Stephen M.Shapiro, Michael W McConnell, and
Kimberlee W Colby; forLiberty Counsel et al. by
Mathew D. Staver and
JerryFalwell, Jr.; for the Northstar Legal Center by
Jordan WLorence; for Spearman Independent School District et al. by
Roger D. Hepworth; for the Texas Association of SchoolBoards Legal Assistance Fund by
David M. Feldman and
Myra C.
Schexnayder; for the Texas Justice Foundationet al. by
Linda L. Schlueter; for Senator James M. Inhofe etal. by
Barry C.
Hodge; for Congressman Steve Largentet al. by
Brett M. Kavanaugh; for Marian Ward et al. by
KellyJ.Coghlan; and for Texas Public SchoolStudents et al. by
John L. Carter.Briefs of
amici curiae urging affirmance were filed forthe American Jewish Congress et al. by
Walter E. Dellingerand
Marc D. Stern; and for the Baptist Joint Committee onPublic Affairs et al. by
Derek H. Davis and
MelissaRogers.Briefs of
amici curiae were filed for the RutherfordInstitute by
John W Whitehead, Steven H. Aden, and
JamesA. Hayes, Jr.; and for the Student Press Law Center by
Richard A. Simpson and S.
Mark Goodman.
294JUSTICE STEVENS delivered the opinion of the Court. Prior to1995, the Santa Fe High School student who occupied the school'selective office of student council chaplain delivered a prayer overthe public address system before each varsity football game for theentire season. This practice, along with others, was challenged inDistrict Court as a violation of the Establishment Clause of theFirst Amendment. While these proceedings were pending in theDistrict Court, the school district adopted a different policy thatpermits, but does not require, prayer initiated and led by astudent at all home games. The District Court entered an ordermodifying that policy to permit only nonsectarian, nonproselytizingprayer. The Court of Appeals held that, even as modified by theDistrict Court, the football prayer policy was invalid. We grantedthe school district's petition for certiorari to review thatholding.IThe Santa Fe Independent School District (District) is apolitical subdivision of the State of Texas, responsible for theeducation of more than 4,000 students in a small community in thesouthern part of the State. The District includes the Santa Fe HighSchool, two primary schools, an intermediate school and the juniorhigh school. Respondents are two sets of current or former studentsand their respective mothers. One family is Mormon and the other isCatholic. The District Court permitted respondents (Does) tolitigate anonymously to protect them from intimidation orharassment.11 A decision, the Fifth Circuit Court of Appeals noted, thatmany District officials "apparently neither agreed with norparticularly respected."
168 F.3d806, 809, n. 1
(CA5 1999). About a month after thecomplaint was filed, the District Court entered an order thatprovided, in part: "[A]ny further attempt on the part of Districtor school administration, officials, counsellors, teachers,employees or servants of the School District, parents, students oranyone else, overtly or covertly to ferret out the identities ofthe Plaintiffs in this cause, by means of bogus petitions,questionnaires, individual interrogation, or downright 'snooping',will
295Respondents commenced this action in April 1995 and moved for atemporary restraining order to prevent the District from violatingthe Establishment Clause at the imminent graduation exercises. Intheir complaint the Does alleged that the District had engaged inseveral proselytizing practices, such as promoting attendance at aBaptist revival meeting, encouraging membership in religious clubs,chastising children who held minority religious beliefs, anddistributing Gideon Bibles on school premises. They also allegedthat the District allowed students to read Christian invocationsand benedictions from the stage at graduation ceremonies,2 and todeliver overtly Christian prayers over the public address system athome football games.On May 10, 1995, the District Court entered an interim orderaddressing a number of different issues.3 With re-cease immediately. ANYONE TAKING ANY ACTION ON SCHOOL PROPERTY,DURING SCHOOL HOURS, OR WITH SCHOOL RESOURCES OR APPROVAL FORPURPOSES OF ATTEMPTING TO ELICIT THE NAMES OR IDENTITIES OF THEPLAINTIFFS IN THIS CAUSE OF ACTION, BY OR ON BEHALF OF ANY OF THESEINDIVIDUALS, WILL FACE THE HARSHEST POSSIBLE CONTEMPT SANCTIONSFROM THIS COURT, AND MAY ADDITIONALLY FACE CRIMINAL LIABILITY. TheCourt wants these proceedings addressed on their merits, and not onthe basis of intimidation or harassment of the participants oneither side." App. 34-35.2 At the 1994 graduation ceremony the senior class presidentdelivered this invocation:"Please bow your heads."Dear heavenly Father, thank you for allowing us to gather heresafely tonight. We thank you for the wonderful year you haveallowed us to spend together as students of Santa Fe. We thank youfor our teachers who have devoted many hours to each of us. Thankyou, Lord, for our parents and may each one receive the specialblessing. We pray also for a blessing and guidance as each studentmoves forward in the future. Lord, bless this ceremony and give usall a safe journey home. In Jesus' name we pray."
Id., at19.3 For example, it prohibited school officials from endorsing orparticipating in the baccalaureate ceremony sponsored by the SantaFe Ministerial Alliance, and ordered the District to establishpolicies to deal with
296spect to the impending graduation, the order provided that"non-denominational prayer" consisting of "an invocation and/orbenediction" could be presented by a senior student or studentsselected by members of the graduating class. The text of the prayerwas to be determined by the students, without scrutiny orpreapproval by school officials. References to particular religiousfigures "such as Mohammed, Jesus, Buddha, or the like" would bepermitted "as long as the general thrust of the prayer isnon-proselytizing." App.32.In response to that portion of the order, the District adopted aseries of policies over several months dealing with prayer atschool functions. The policies enacted in May and July forgraduation ceremonies provided the format for the August andOctober policies for football games. The May policy provided:
"'The board has chosen to permit the graduating senior class,with the advice and counsel of the senior class principal ordesignee, to elect by secret ballot to choose whether an invocationand benediction shall be part of the graduation exercise. If sochosen the class shall elect by secret ballot, from a list ofstudent volunteers, students to deliver nonsectarian,nonproselytizing invocations and benedictions for the purpose ofsolemnizing
"manifest First Amendment infractions of teachers, counsellors,or other District or school officials or personnel, such asridiculing, berating or holding up for inappropriate scrutiny orexamination the beliefs of any individual students. Similarly, theSchool District will establish or clarify existing procedures forexcluding overt or covert sectarian and proselytizing religiousteaching, such as the use of blatantly denominational religiousterms in spelling lessons, denominational religious songs and poemsin English or choir classes, denominational religious stories andparables in grammar lessons and the like, while at the same timeallowing for frank and open discussion of moral, religious, andsocietal views and beliefs, which are non-denominational andnon-judgmental."
Id., at 34.
297their graduation ceremonies.'"168 F.3d806, 811(CAS 1999) (emphasis deleted).
The parties stipulated that after this policy was adopted, "thesenior class held an election to determine whether to have aninvocation and benediction at the commencement [and that the] classvoted, by secret ballot, to include prayer at the high schoolgraduation." App. 52. In a second vote the class elected twoseniors to deliver the invocation and benediction.4In July, the District enacted another policy eliminating therequirement that invocations and benedictions be "nonsectarian andnonproselytising," but also providing that if the District were tobe enjoined from enforcing that policy, the May policy wouldautomatically become effective.The August policy, which was titled "Prayer at Football Games,"was similar to the July policy for graduations. It also authorizedtwo student elections, the first to determine whether "invocations"should be delivered, and the second to select the spokesperson todeliver them. Like the July policy, it contained two parts, aninitial statement that omitted any requirement that the content ofthe invocation be "nonsectarian and nonproselytising," and afallback provision that automatically added that limitation if thepreferred policy should be enjoined. On August 31, 1995, accordingto the parties' stipulation: "[T]he district's high school studentsvoted to determine whether a student would deliver prayer atvarsity football games .... The students chose to allow a4 The student giving the invocation thanked the Lord for keepingthe class safe through 12 years of school and for gracing theirlives with two special people and closed: "Lord, we ask that Youkeep Your hand upon us during this ceremony and to help us keep Youin our hearts through the rest of our lives. In God's name we pray.Amen."
Id., at 53. The student benediction was similar incontent and closed: "Lord, we ask for Your protection as we departto our next destination and watch over us as we go our separateways. Grant each of us a safe trip and keep us secure throughoutthe night. In Your name we pray. Amen."
Id., at 54.
298student to say a prayer at football games."
Id., at 65. Aweek later, in a separate election, they selected a student "todeliver the prayer at varsity football games."
Id., at66.The final policy (October policy) is essentially the same as theAugust policy, though it omits the word "prayer" from its title,and refers to "messages" and "statements" as well as "invocations."5 It is the validity of that policy that is before us.65 Despite these changes, the school did not conduct anotherelection, under the October policy, to supersede the results of theAugust policy election.6 It provides:"STUDENT ACTIVITIES:"PRE-GAME CEREMONIES AT FOOTBALL GAMES"The board has chosen to permit students to deliver a briefinvocation and/or message to be delivered during the pre-gameceremonies of home varsity football games to solemnize the event,to promote good sportsmanship and student safety, and to establishthe appropriate environment for the competition."Upon advice and direction of the high school principal, eachspring, the high school student council shall conduct an election,by the high school student body, by secret ballot, to determinewhether such a statement or invocation will be a part of thepre-game ceremonies and if so, shall elect a student, from a listof student volunteers, to deliver the statement or invocation. Thestudent volunteer who is selected by his or her classmates maydecide what message and/or invocation to deliver, consistent withthe goals and purposes of this policy."If the District is enjoined by a court order from theenforcement of this policy, then and only then will the followingpolicy automatically become the applicable policy of the schooldistrict."The board has chosen to permit students to deliver a briefinvocation and/or message to be delivered during the pre-gameceremonies of home varsity football games to solemnize the event,to promote good sportsmanship and student safety, and to establishthe appropriate environment for the competition."Upon advice and direction of the high school principal, eachspring, the high school student council shall conduct an election,by the high school student body, by secret ballot, to determinewhether such a mes-
299The District Court did enter an order precluding enforcement ofthe first, open-ended policy. Relying on our decision in
Leev.
Weisman,505 U. S. 577 (1992), itheld that the school's "action must not 'coerce anyone to supportor participate in' a religious exercise." App. to Pet. for Cert.E7. Applying that test, it concluded that the graduation prayersappealed "to distinctively Christian beliefs," 7 and thatdelivering a prayer "over the school's public address system priorto each football and baseball game coerces student participation inreligious events."8 Both parties appealed, the District contendingthat the enjoined portion of the October policy was permissible andthe Does contending that both alternatives violated theEstablishment Clause. The Court of Appeals majority agreed with theDoes.The decision of the Court of Appeals followed Fifth Circuitprecedent that had announced two rules. In
Jones v.
ClearCreek Independent School Dist.,977 F.2d963 (1992), that court held that student-led prayer that wasapproved by a vote of the students and was nonsectarian andnonproselytizing was permissible at high school graduationceremonies. On the other hand, in later cases the Fifth Circuitmade it clear that the
Clear Creek rule applied only to highschoolsage or invocation will be a part of the pre-game ceremonies andif so, shall elect a student, from a list of student volunteers, todeliver the statement or invocation. The student volunteer who isselected by his or her classmates may decide what statement orinvocation to deliver, consistent with the goals and purposes ofthis policy. Any message and/or invocation delivered by a studentmust be nonsectarian and nonproselytizing."
Id., at104-105.7 "The graduation prayers at issue in the instant case, incontrast, are infused with explicit references to Jesus Christ andotherwise appeal to distinctively Christian beliefs. The Courtaccordingly finds that use of these prayers during graduationceremonies, considered in light of the overall manner in which theywere delivered, violated the Establishment Clause." App. to Pet.for Cert. E8.
8Id., at E8-E9.
300graduations and that school-encouraged prayer wasconstitutionally impermissible at school-related sporting events.Thus, in
Doe v.
Duncanville Independent School Dist.,70 F. 3d 402 (1995), it had described a high school graduationas "a significant, once in-a-lifetime event" to be contrasted withathletic events in "a setting that is far less solemn andextraordinary."
Id., at 406-407.9In its opinion in this case, the Court of Appeals explained:
"The controlling feature here is the same as inDuncanville: The prayers are to be deliveredat footballgames-hardly the sober type of annual event that can beappropriately solemnized with prayer. The distinction to which [theDistrict] points is simply one without difference. Regardless ofwhether the prayers are selected by vote or spontaneously initiatedat these frequently-recurring, informal, school-sponsored events,school officials are present and have the authority to stop theprayers. Thus, as we indicated inDuncanville, our decisioninClear Creek II hinged on the singular context andsingularly serious nature of a graduation ceremony. Outside thatnurturing context, a Clear Creek Prayer Policy cannot survive. Wetherefore reverse the district court's holding that [theDistrict's] alternative Clear Creek Prayer Policy can be extendedto football games, irrespective of the presence of thenonsectarian, nonproselytizing restrictions." 168 F. 3d, at823.
The dissenting judge rejected the majority's distinction betweengraduation ceremonies and football games. In his9 Because the dissent overlooks this case, it incorrectlyassumes that a "prayer-only policy" at football games waspermissible in the Fifth Circuit. See
post, at 323 (opinionof REHNQUIST, C. J.).
301opinion the District's October policy created a limited publicforum that had a secular purpose 10 and provided neutralaccommodation of noncoerced, private, religious speechYWe granted the District's petition for certiorari, limited tothe following question: "Whether petitioner's policy permittingstudent-led, student-initiated prayer at football games violatesthe Establishment Clause." 528 U. S. 1002 (1999). We conclude, asdid the Court of Appeals, that it does.IIThe first Clause in the First Amendment to the FederalConstitution provides that "Congress shall make no law respectingan establishment of religion, or prohibiting the free exercisethereof." The Fourteenth Amendment imposes those substantivelimitations on the legislative power of the States and theirpolitical subdivisions.
Wallace v.
Jaffree,472 U. S. 38, 49-50(1985). In
Lee v.
Weisman, 505 U. S. 577 (1992), weheld that a prayer delivered by a rabbi at a middle schoolgraduation ceremony violated that Clause. Although this caseinvolves student prayer at a different10 "There are in fact several secular reasons for allowing abrief, serious message before football games-some of which [theDistrict] has listed in its policy. At sporting events, messagesand/or invocations can promote, among other things, honest and fairplay, clean competition, individual challenge to be one's best,importance of team work, and many more goals that the majoritycould conceive would it only pause to do so."Having again relinquished all editorial control, [the District]has created a limited public forum for the students to give briefstatements or prayers concerning the value of those goals and themethods for achieving them." 168 F. 3d, at 835.11 "The majority fails to realize that what is at issue in this
facial challenge to this school policy is the neutralaccommodation of non-coerced, private, religious speech, whichallows students, selected by students, to express their personalviewpoints. The state is not involved. The school board has neitherscripted, supervised, endorsed, suggested, nor edited thesepersonal viewpoints. Yet the majority imposes a judicial curse uponsectarian religious speech."
Id., at 836.
302type of school function, our analysis is properly guided by theprinciples that we endorsed in
Lee.As we held in that case:
"The principle that government may accommodate the free exerciseof religion does not supersede the fundamental limitations imposedby the Establishment Clause. It is beyond dispute that, at aminimum, the Constitution guarantees that government may not coerceanyone to support or participate in religion or its exercise, orotherwise act in a way which 'establishes a [state] religion orreligious faith, or tends to do SO.'"Id., at 587 (citationsomitted) (quotingLynch v.Donnelly,465 U. S. 668, 678(1984)).
In this case the District first argues that this principle isinapplicable to its October policy because the messages are privatestudent speech, not public speech. It reminds us that "there is acrucial difference between
government speech endorsingreligion, which the Establishment Clause forbids, and
private speech endorsing religion, which the Free Speech andFree Exercise Clauses protect."
Board of Ed. of WestsideCommunity Schools (Dist. 66) v.
Mergens,496 U. S. 226, 250 (1990)(opinion of O'CONNOR, J.). We certainly agree with thatdistinction, but we are not persuaded that the pregame invocationsshould be regarded as "private speech."These invocations are authorized by a government policy and takeplace on government property at governmentsponsored school-relatedevents. Of course, not every message delivered under suchcircumstances is the government's own. We have held, for example,that an individual's contribution to a government-created forum wasnot government speech. See
Rosenberger v.
Rector andVisitors of Univ. of Va.,515 U. S. 819 (1995).Although the District relies heavily on
Rosenberger andsimilar cases involving such
303forums,12 it is clear that the pregame ceremony is not the typeof forum discussed in those cases.13 The Santa Fe school officialssimply do not "evince either 'by policy or by practice,' any intentto open the [pregame ceremony] to 'indiscriminate use,' ... by thestudent body generally."
Hazelwood School Dist. v.
Kuhlmeier,484U. S. 260, 270 (1988) (quoting
Perry Ed. Assn. v.
Perry Local Educators' Assn.,460 U. S. 37, 47 (1983)).Rather, the school allows only one student, the same student forthe entire season, to give the invocation. The statement orinvocation, moreover, is subject to particular regulations thatconfine the content and topic of the student's message, see
infra, at 306307, 309. By comparison, in
Perry werejected a claim that the school had created a limited public forumin its school mail system despite the fact that it had allowed farmore speakers to address a much broader range of topics than thepolicy at issue here.14 As we concluded in
Perry, "selectiveaccess does not transform government property into a public forum."460 U. S., at 47.12 See,
e. g., Brief for Petitioner 44-48, citing
Rosenberger v.
Rector and Visitors of Univ. of Va.,515 U. S. 819(1995) (limited public forum);
Widmar v.
Vincent,454 U. S. 263(1981) (limited public forum);
Capitol Square Review andAdvisory Bd. v.
Pinette,515 U. S. 753 (1995)(traditional public forum);
Lamb's Chapel v.
CenterMoriches Union Free School Dist.,508 U. S. 384 (1993)(limited public forum). Although the District relies on thesepublic forum cases, it does not actually argue that the pregameceremony constitutes such a forum.13 A conclusion that the District had created a public forumwould help shed light on whether the resulting speech is public orprivate, but we also note that we have never held the mere creationof a public forum shields the government entity from scrutiny underthe Establishment Clause. See,
e. g., Pinette, 515 U. S., at772 (O'CONNOR, J., concurring in part and concurring in judgment)("I see no necessity to carve out ... an exception to theendorsement test for the public forum context").14 The school's internal mail system in
Perry was open tovarious private organizations such as "[l]ocal parochial schools,church groups, YMCA's, and Cub Scout units." 460 U. S., at 39, n.2.
304Granting only one student access to the stage at a time doesnot, of course, necessarily preclude a finding that a school hascreated a limited public forum. Here, however, Santa Fe's studentelection system ensures that only those messages deemed"appropriate" under the District's policy may be delivered. Thatis, the majoritarian process implemented by the Districtguarantees, by definition, that minority candidates will neverprevail and that their views will be effectively silenced.Recently, in Board of Regents of Univ. of Wis. System v.
Southworth,529 U. S. 217 (2000), weexplained why student elections that determine, by majority vote,which expressive activities shall receive or not receive schoolbenefits are constitutionally problematic:
"To the extent the referendum substitutes majoritydeterminations for viewpoint neutrality it would undermine theconstitutional protection the program requires. The whole theory ofviewpoint neutrality is that minority views are treated with thesame respect as are majority views. Access to a public forum, forinstance, does not depend upon majoritarian consent. That principleis controlling here."Id., at 235.
Like the student referendum for funding in
Southworth,this student election does nothing to protect minority views butrather places the students who hold such views at the mercy of themajority.15 Because "fundamental rights may not be15 If instead of a choice between an invocation and no pregamemessage, the first election determined whether a political speechshould be made, and the second election determined whether thespeaker should be a Democrat or a Republican, it would be ratherclear that the public address system was being used to deliver apartisan message reflecting the viewpoint of the majority ratherthan a random statement by a private individual.The fact that the District's policy provides for the election ofthe speaker only after the majority has voted on her messageidentifies an obvious distinction between this case and the typicalelection of a "stu-
305submitted to vote; they depend on the outcome of no elections,"
West Virginia Bd. of Ed. v.
Barnette,319 U. S. 624, 638(1943), the District's elections are insufficient safeguards ofdiverse student speech.In
Lee, the school district made the related argumentthat its policy of endorsing only "civic or nonsectarian" prayerwas acceptable because it minimized the intrusion on the audienceas a whole. We rejected that claim by explaining that such amajoritarian policy "does not lessen the offense or isolation tothe objectors. At best it narrows their number, at worst increasestheir sense of isolation and affront." 505 U. S., at 594.Similarly, while Santa Fe's majoritarian election might ensure that
most of the students are represented, it does nothing toprotect the minority; indeed, it likely serves to intensify theiroffense.Moreover, the District has failed to divorce itself from thereligious content in the invocations. It has not succeeded in doingso, either by claiming that its policy is "'one of neutralityrather than endorsement'" 16 or by characterizing the individualstudent as the "circuit-breaker" 17 in the process. Contrary to theDistrict's repeated assertions that it has adopted a "hands-off"approach to the pregame invocation, the realities of the situationplainly reveal that its policy involves both perceived and actualendorsement of religion. In this case, as we found in
Lee,the "degree of school involvement" makes it clear that the pregameprayers bear "the imprint of the State and thus put school-agechildren who objected in an untenable position."
Id., at590.The District has attempted to disentangle itself from thereligious messages by developing the two-step studentdent body president, or even a newly elected prom king orqueen."
Post, at 321.16 Brief for Petitioner 19 (quoting
Board of Ed. of WestsideCommunity Schools (Dist. 66) v.
Mergens,496 U. S. 226, 248 (1990)(plurality opinion)). 17Tr. of Oral Arg. 7.
306election process. The text of the October policy, however,exposes the extent of the school's entanglement. The elections takeplace at all only because the school "board
has chosen topermit students to deliver a brief invocation and/or message." App.104 (emphasis added). The elections thus "shall" be conducted "bythe high school student council" and "[u]pon advice and directionof the high school principal."
Id., at 104-105. The decisionwhether to deliver a message is first made by majority vote of theentire student body, followed by a choice of the speaker in aseparate, similar majority election. Even though the particularwords used by the speaker are not determined by those votes, thepolicy mandates that the "statement or invocation" be "consistentwith the goals and purposes of this policy," which are "tosolemnize the event, to promote good sportsmanship and studentsafety, and to establish the appropriate environment for thecompetition."
Ibid.In addition to involving the school in the selection of thespeaker, the policy, by its terms, invites and encourages religiousmessages. The policy itself states that the purpose of the messageis "to solemnize the event." A religious message is the mostobvious method of solemnizing an event. Moreover, the requirementsthat the message "promote good sportsmanship" and "establish theappropriate environment for competition" further narrow the typesof message deemed appropriate, suggesting that a solemn, yetnonreligious, message, such as commentary on United States foreignpolicy, would be prohibited.18 Indeed, the only type of messagethat is expressly endorsed in the text is an "invocation"-a termthat primarily describes an appeal for divine18 THE CHIEF JUSTICE'S hypothetical of the student bodypresident asked by the school to introduce a guest speaker with abiography of her accomplishments, see
post, at 325(dissenting opinion), obviously would pose no problems under theEstablishment Clause.
307assistance.19 In fact, as used in the past at Santa Fe HighSchool, an "invocation" has always entailed a focused religiousmessage. Thus, the expressed purposes of the policy encourage theselection of a religious message, and that is precisely how thestudents understand the policy. The results of the electionsdescribed in the parties' stipulation 20 make it clear that thestudents understood that the central question before them waswhether prayer should be a part of the pregame ceremony.21 Werecognize the important role that public worship plays in manycommunities, as well as the sincere desire to include public prayeras a part of various occasions so as to mark those occasions'significance. But such religious activity in public schools, aselsewhere, must comport with the First Amendment.The actual or perceived endorsement of the message, moreover, isestablished by factors beyond just the text of the policy. Once thestudent speaker is selected and the message composed, theinvocation is then delivered to a large audience assembled as partof a regularly scheduled, school-sponsored function conducted onschool property. The message is broadcast over the school's publicaddress system, which remains subject to the control of schoolofficials. It is fair to assume that the pregame ceremony is19 See,
e.g., Webster's Third New InternationalDictionary 1190 (1993) (defining "invocation" as "a prayer ofentreaty that is usu[ally] a call for the divine presence and isoffered at the beginning of a meeting or service of worship").20 See
supra, at 297-298, and n. 4.21 Even if the plain language of the October policy werefacially neutral, "the Establishment Clause forbids a State to hidebehind the application of formally neutral criteria and remainstudiously oblivious to the effects of its actions."
CapitolSquare Review and Advisory Bd. v.
Pinette, 515 U. S., at777 (O'CONNOR, J., concurring in part and concurring in judgment);see also
Church of Lukumi Babalu Aye, Inc. v.
Hialeah,508U. S. 520, 534-535 (1993) (making the same point in the FreeExercise Clause context).
308clothed in the traditional indicia of school sporting events,which generally include not just the team, but also cheerleadersand band members dressed in uniforms sporting the school name andmascot. The school's name is likely written in large print acrossthe field and on banners and flags. The crowd will certainlyinclude many who display the school colors and insignia on theirschool T-shirts, jackets, or hats and who may also be waving signsdisplaying the school name. It is in a setting such as this that"[t]he board has chosen to permit" the elected student to rise andgive the "statement or invocation."In this context the members of the listening audience mustperceive the pregame message as a public expression of the views ofthe majority of the student body delivered with the approval of theschool administration. In cases involving state participation in areligious activity, one of the relevant questions is "whether anobjective observer, acquainted with the text, legislative history,and implementation of the statute, would perceive it as a stateendorsement of prayer in public schools."
Wallace, 472 U.S., at 73, 76 (O'CONNOR, J., concurring in judgment); see also
Capitol Square Review and Advisory Bd. v.
Pinette,515 U. S. 753,777 (1995) (O'CONNOR, J., concurring in part and concurring injudgment). Regardless of the listener's support for, or objectionto, the message, an objective Santa Fe High School student willunquestionably perceive the inevitable pregame prayer as stampedwith her school's seal of approval.The text and history of this policy, moreover, reinforce ourobjective student's perception that the prayer is, in actuality,encouraged by the school. When a governmental entity professes asecular purpose for an arguably religious policy, the government'scharacterization is, of course, entitled to some deference. But itis nonetheless the duty of the courts to "distinguis[h] a shamsecular purpose from a sincere one."
Wallace, 472 U. S., at75 (O'CONNOR, J., concurring in judgment).
309According to the District, the secular purposes of the policyare to "foste[r] free expression of private persons ... as well [asto] solemniz[e] sporting events, promot[e] good sportsmanship andstudent safety, and establis[h] an appropriate environment forcompetition." Brief for Petitioner 14. We note, however, that theDistrict's approval of only one specific kind of message, an"invocation," is not necessary to further any of these purposes.Additionally, the fact that only one student is permitted to give acontent-limited message suggests that this policy does little to"foste[r] free expression." Furthermore, regardless of whether oneconsiders a sporting event an appropriate occasion for solemnity,the use of an invocation to foster such solemnity is impermissiblewhen, in actuality, it constitutes prayer sponsored by the school.And it is unclear what type of message would be both appropriately"solemnizing" under the District's policy and yet nonreligious.Most striking to us is the evolution of the current policy fromthe long-sanctioned office of "Student Chaplain" to the candidlytitled "Prayer at Football Games" regulation. This historyindicates that the District intended to preserve the practice ofprayer before football games. The conclusion that the Districtviewed the October policy simply as a continuation of the previouspolicies is dramatically illustrated by the fact that the schooldid not conduct a new election, pursuant to the current policy, toreplace the results of the previous election, which occurred underthe former policy. Given these observations, and in light of theschool's history of regular delivery of a student-led prayer atathletic events, it is reasonable to infer that the specificpurpose of the policy was to preserve a popular "state-sponsoredreligious practice."
Lee, 505 U. S., at 596.School sponsorship of a religious message is impermissiblebecause it sends the ancillary message to members of the audiencewho are nonadherants "that they are outsiders, not full members ofthe political community, and an ac-
310companying message to adherants that they are insiders, favoredmembers of the political community."
Lynch, 465 U. S., at688 (O'CONNOR, J., concurring). The delivery of such a message-overthe school's public address system, by a speaker representing thestudent body, under the supervision of school faculty, and pursuantto a school policy that explicitly and implicitly encourages publicprayer-is not properly characterized as "private" speech.IIIThe District next argues that its football policy isdistinguishable from the graduation prayer in
Lee because itdoes not coerce students to participate in religious observances.Its argument has two parts: first, that there is no impermissiblegovernment coercion because the pregame messages are the product ofstudent choices; and second, that there is really no coercion atall because attendance at an extracurricular event, unlike agraduation ceremony, is voluntary.The reasons just discussed explaining why the alleged"circuit-breaker" mechanism of the dual elections and studentspeaker do not turn public speech into private speech alsodemonstrate why these mechanisms do not insulate the school fromthe coercive element of the final message. In fact, this aspect ofthe District's argument exposes anew the concerns that are createdby the majoritarian election system. The parties' stipulationclearly states that the issue resolved in the first election was"whether a student would deliver prayer at varsity football games,"App. 65, and the controversy in this case demonstrates that theviews of the students are not unanimous on that issue.One of the purposes served by the Establishment Clause is toremove debate over this kind of issue from governmental supervisionor control. We explained in
Lee that the "preservation andtransmission of religious beliefs and worship is a responsibilityand a choice committed to the private sphere." 505 U. S., at 589.The two student elections au-
311thorized by the policy, coupled with the debates that presumablymust precede each, impermissibly invade that private sphere. Theelection mechanism, when considered in light of the history inwhich the policy in question evolved, reflects a device theDistrict put in place that determines whether religious messageswill be delivered at home football games. The mechanism encouragesdivisiveness along religious lines in a public school setting, aresult at odds with the Establishment Clause. Although it is truethat the ultimate choice of student speaker is "attributable to thestudents," Brief for Petitioner 40, the District's decision to holdthe constitutionally problematic election is clearly "a choiceattributable to the State,"
Lee, 505 U. S., at 587.The District further argues that attendance at the commencementceremonies at issue in
Lee "differs dramatically" fromattendance at high school football games, which it contends "are ofno more than passing interest to many students" and are "decidedlyextracurricular," thus dissipating any coercion. Brief forPetitioner 41. Attendance at a high school football game, unlikeshowing up for class, is certainly not required in order to receivea diploma. Moreover, we may assume that the District is correct inarguing that the informal pressure to attend an athletic event isnot as strong as a senior's desire to attend her own graduationceremony.There are some students, however, such as cheerleaders, membersof the band, and, of course, the team members themselves, for whomseasonal commitments mandate their attendance, sometimes for classcredit. The District also minimizes the importance to many studentsof attending and participating in extracurricular activities aspart of a complete educational experience. As we noted in
Lee, "[l]aw reaches past formalism." 505 U. S., at 595. Toassert that high school students do not feel immense socialpressure, or have a truly genuine desire, to be involved in theextracurricular event that is American high school football is"formalistic in the extreme."
Ibid. We stressed in
Lee the
312obvious observation that "adolescents are often susceptible topressure from their peers towards conformity, and that theinfluence is strongest in matters of social convention."
Id., at 593. High school home football games are traditionalgatherings of a school community; they bring together students andfaculty as well as friends and family from years present and pastto root for a common cause. Undoubtedly, the games are notimportant to some students, and they voluntarily choose not toattend. For many others, however, the choice between attendingthese games and avoiding personally offensive religious rituals isin no practical sense an easy one. The Constitution, moreover,demands that the school may not force this difficult choice uponthese students for "[i]t is a tenet of the First Amendment that theState cannot require one of its citizens to forfeit his or herrights and benefits as the price of resisting conformance tostatesponsored religious practice."
Id., at 596.Even if we regard every high school student's decision to attenda home football game as purely voluntary, we are neverthelesspersuaded that the delivery of a pregame prayer has the impropereffect of coercing those present to participate in an act ofreligious worship. For "the government may no more use socialpressure to enforce orthodoxy than it may use more direct means."
Id., at 594. As in
Lee, "[w]hat to most believers mayseem nothing more than a reasonable request that the nonbelieverrespect their religious practices, in a school context may appearto the nonbeliever or dissenter to be an attempt to employ themachinery of the State to enforce a religious orthodoxy."
Id., at 592. The constitutional command will not permit theDistrict "to exact religious conformity from a student as theprice" of joining her classmates at a varsity football game.2222 "We think the Government's position that this interestsuffices to force students to choose between compliance orforfeiture demonstrates fundamental inconsistency in itsargumentation. It fails to acknowledge that what for many ofDeborah's classmates and their parents was a spiritual
313The Religion Clauses of the First Amendment prevent thegovernment from making any law respecting the establishment ofreligion or prohibiting the free exercise thereof. By no means dothese commands impose a prohibition on all religious activity inour public schools. See,
e. g., Lamb's Chapel v.
CenterMoriches Union Free School Dist., 508 U. S. 384, 395 (1993);
Board of Ed. of Westside Community Schools (Dist. 66) v.
Mergens,496U. S. 226 (1990);
Wallace, 472 U. S., at 59. Indeed, thecommon purpose of the Religion Clauses "is to secure religiousliberty."
Engel v.
Vitale,370 U. S. 421, 430(1962). Thus, nothing in the Constitution as interpreted by thisCourt prohibits any public school student from voluntarily prayingat any time before, during, or after the schoolday. But thereligious liberty protected by the Constitution is abridged whenthe State affirmatively sponsors the particular religious practiceof prayer.IVFinally, the District argues repeatedly that the Does have madea premature facial challenge to the October policy that necessarilymust fail. The District emphasizes, quite correctly, that until astudent actually delivers a solemnizing message under the latestversion of the policy, there can be no certainty that any of thestatements or invocations will be religious. Thus, it concludes,the October policy necessarily survives a facial challenge.This argument, however, assumes that we are concerned only withthe serious constitutional injury that occurs when a student isforced to participate in an act of religious wor-imperative was for Daniel and Deborah Weisman religiousconformance compelled by the State. While in some societies thewishes of the majority might prevail, the Establishment Clause ofthe First Amendment is addressed to this contingency and rejectsthe balance urged upon us. The Constitution forbids the State toexact religious conformity from a student as the price of attendingher own high school graduation. This is the calculus theConstitution commands."
Lee, 505 U. S., at 595-596.
314ship because she chooses to attend a school event. But theConstitution also requires that we keep in mind "the myriad, subtleways in which Establishment Clause values can be eroded,"
Lynch, 465 U. S., at 694 (O'CONNOR, J., concurring), andthat we guard against other different, yet equally important,constitutional injuries. One is the mere passage by the District ofa policy that has the purpose and perception of governmentestablishment of religion. Another is the implementation of agovernmental electoral process that subjects the issue of prayer toa majoritarian vote.The District argues that the facial challenge must fail because"Santa Fe's Football Policy cannot be invalidated on the basis ofsome 'possibility or even likelihood' of an unconstitutionalapplication." Brief for Petitioner 17 (quoting
Bowen v.
Kendrick,487U. S. 589, 613 (1988)). Our Establishment Clause casesinvolving facial challenges, however, have not focused solely onthe possible applications of the statute, but rather haveconsidered whether the statute has an unconstitutional purpose.Writing for the Court in
Bowen, THE CHIEF JUSTICE concludedthat "[a]s in previous cases involving facial challenges onEstablishment Clause grounds,
e. g., Edwards v.
Aguillard, [
482 U. S. 578 (1987)];
Mueller v.
Allen,463 U. S. 388 (1983), weassess the constitutionality of an enactment by reference to thethree factors first articulated in
Lemon v.
Kurtzman,403 U. S. 602,612 (1971) ... , which guides '[t]he general nature of our inquiryin this area,'
Mueller v.
Allen, supra, at 394." 487U. S., at 602. Under the
Lemon standard, a court mustinvalidate a statute if it lacks "a secular legislative purpose."
Lemon v.
Kurtzman,403 U. S. 602, 612(1971). It is therefore proper, as part of this facial challenge,for us to examine the purpose of the October policy.As discussed,
supra, at 306-307,309, the text of theOctober policy alone reveals that it has an unconstitutionalpurpose. The plain language of the policy clearly spells out theextent of school involvement in both the election of thespeaker
315and the content of the message. Additionally, the text of theOctober policy specifies only one, clearly preferred message-thatof Santa Fe's traditional religious "invocation." Finally, theextremely selective access of the policy and other contentrestrictions confirm that it is not a content-neutral regulationthat creates a limited public forum for the expression of studentspeech. Our examination, however, need not stop at an analysis ofthe text of the policy.This case comes to us as the latest step in developinglitigation brought as a challenge to institutional practices thatunquestionably violated the Establishment Clause. One of thosepractices was the District's long-established tradition ofsanctioning student-led prayer at varsity football games. Thenarrow question before us is whether implementation of the Octoberpolicy insulates the continuation of such prayers fromconstitutional scrutiny. It does not. Our inquiry into thisquestion not only can, but must, include an examination of thecircumstances surrounding its enactment. Whether a governmentactivity violates the Establishment Clause is "in large part alegal question to be answered on the basis of judicialinterpretation of social facts .... Every government practice mustbe judged in its unique circumstances .... "
Lynch, 465 U.S., at 693-694 (O'CONNOR, J., concurring). Our discussion in theprevious sections,
supra, at 307-310, demonstrates that inthis case the District's direct involvement with school prayerexceeds constitutional limits.The District, nevertheless, asks us to pretend that we do notrecognize what every Santa Fe High School student understandsclearly-that this policy is about prayer. The District further asksus to accept what is obviously untrue: that these messages arenecessary to "solemnize" a football game and that thissingle-student, year-long position is essential to the protectionof student speech. We refuse to turn a blind eye to the context inwhich this policy arose, and that context quells any doubt thatthis policy was implemented with the purpose of endorsing schoolprayer.
316Therefore, the simple enactment of this policy, with the purposeand perception of school endorsement of student prayer, was aconstitutional violation. We need not wait for the inevitable toconfirm and magnify the constitutional injury. In
Wallace,for example, we invalidated Alabama's as yet unimplemented andvoluntary "moment of silence" statute based on our conclusion thatit was enacted "for the sole purpose of expressing the State'sendorsement of prayer activities for one minute at the beginning ofeach school day." 472 U. S., at 60; see also
Church of LukumiBabalu Aye, Inc. v.
Hialeah,508 U. S. 520, 532(1993). Therefore, even if no Santa Fe High School student wereever to offer a religious message, the October policy fails afacial challenge because the attempt by the District to encourageprayer is also at issue. Government efforts to endorse religioncannot evade constitutional reproach based solely on the remotepossibility that those attempts may fail.This policy likewise does not survive a facial challenge becauseit impermissibly imposes upon the student body a majoritarianelection on the issue of prayer. Through its election scheme, theDistrict has established a governmental electoral mechanism thatturns the school into a forum for religious debate. It furtherempowers the student body majority with the authority to subjectstudents of minority views to constitutionally improper messages.The award of that power alone, regardless of the students' ultimateuse of it, is not acceptable.23 Like the referendum in
Board ofRegents of Univ. of Wis. System v.
Southworth, 529 U.S.23 THE CHIEF JUSTICE accuses us of "essentially invalidat[ing]all student elections," see
post, at 321. This is obvioushyperbole. We have concluded that the resulting religious messageunder this policy would be attributable to the school, not just thestudent, see
supra, at 301-310. For this reason, we now holdonly that the District's decision to allow the student majority tocontrol whether students of minority views are subjected to aschool-sponsored prayer violates the Establishment Clause.
317217 (2000), the election mechanism established by the Districtundermines the essential protection of minority viewpoints. Such asystem encourages divisiveness along religious lines and threatensthe imposition of coercion upon those students not desiring toparticipate in a religious exercise. Simply by establishing thisschool-related procedure, which entrusts the inherentlynongovernmental subject of religion to a majoritarian vote, aconstitutional violation has occurred.24 No further injury isrequired for the policy to fail a facial challenge.To properly examine this policy on its face, we "must be deemedaware of the history and context of the community and forum,"
Pinette, 515 U. S., at 780 (O'CONNOR, J., concurring in partand concurring in judgment). Our examination of those circumstancesabove leads to the conclusion that this policy does not provide theDistrict with the constitutional safe harbor it sought. The policyis invalid on its face because it establishes an impropermajoritarian election on religion, and unquestionably has thepurpose and creates the perception of encouraging the delivery ofprayer at a series of important school events.The judgment of the Court of Appeals is, accordingly,affirmed.It is so ordered.24 THE CHIEF JUSTICE contends that we have "misconstrue[d] thenature ... [of] the policy as being an election on 'prayer' and'religion,'"
post, at 320. We therefore reiterate that theDistrict has stipulated to the facts that the most recent electionwas held "to determine whether a student would deliver
prayer at varsity football games," that the "students choseto allow a student to say a
prayer at football games," andthat a second election was then held "to determine which studentwould deliver the
prayer." App. 65-66 (emphases added).Furthermore, the policy was titled
"Prayer at FootballGames."
Id., at 99 (emphasis added). Although the Districthas since eliminated the word "prayer" from the policy, itapparently viewed that change as sufficiently minor as to makeholding a new election unnecessary.
318CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICETHOMAS join, dissenting.The Court distorts existing precedent to conclude that theschool district's student-message program is invalid on its faceunder the Establishment Clause. But even more disturbing than itsholding is the tone of the Court's opinion; it bristles withhostility to all things religious in public life. N either theholding nor the tone of the opinion is faithful to the meaning ofthe Establishment Clause, when it is recalled that GeorgeWashington himself, at the request of the very Congress whichpassed the Bill of Rights, proclaimed a day of "public thanksgivingand prayer, to be observed by acknowledging with grateful heartsthe many and signal favors of Almighty God." PresidentialProclamation, 1 Messages and Papers of the Presidents, 1789-1897,p. 64 (J. Richardson ed. 1897).We do not learn until late in the Court's opinion thatrespondents in this case challenged the district's studentmessageprogram at football games before it had been put into practice. Asthe Court explained in
United States v.
Salerno,481 U. S. 739,745 (1987), the fact that a policy might "operateunconstitutionally under some conceivable set of circumstances isinsufficient to render it wholly invalid." See also
Bowen v.
Kendrick,487U. S. 589, 612 (1988). While there is an exception to thisprinciple in the First Amendment overbreadth context because of ourconcern that people may refrain from speech out of fear ofprosecution,
Los Angeles Police Dept. v.
United ReportingPublishing Corp.,528 U. S. 32, 38-40(1999), there is no similar justification for Establishment Clausecases. No speech will be "chilled" by the existence of a governmentpolicy that might unconstitutionally endorse religion overnonreligion. Therefore, the question is not whether the district'spolicy
may be applied in violation of the EstablishmentClause, but whether it inevitably will be.
319The Court, venturing into the realm of prophecy, decides that it"need not wait for the inevitable" and invalidates the district'spolicy on its face. See
ante, at 316. To do so, it appliesthe most rigid version of the oft-criticized test of
Lemonv.
Kurtzman,403 U. S. 602(1971).1
Lemon has had a checkered career in the decisional law ofthis Court. See,
e. g., Lamb's Chapel v.
Center MorichesUnion Free School Dist.,508 U. S. 384, 398-399(1993) (SCALIA, J., concurring in judgment) (collecting opinionscriticizing
Lemon); Wallace v.
Jaffree,472 U. S. 38, 108-114(1985) (REHNQUIST, J., dissenting) (stating that
Lemon's"three-part test represents a determined effort to craft a workablerule from a historically faulty doctrine; but the rule can only beas sound as the doctrine it attempts to service" (internalquotation marks omitted));
Committee for Public Ed. andReligious Liberty v.
Regan,444 U. S. 646, 671 (1980)(STEVENS, J., dissenting) (deriding "the sisyphean task of tryingto patch together the blurred, indistinct, and variable barrierdescribed in
Lemon"). We have even gone so far as to statethat it has never been binding on us.
Lynch v.
Donnelly,465U. S. 668, 679 (1984) ("[W]e have repeatedly emphasized ourunwillingness to be confined to any single test or criterion inthis sensitive area .... In two cases, the Court did not even applythe
Lemon 'test' [citing
Marsh1 The Court rightly points out that in facial challenges in theEstablishment Clause context, we have looked to
Lemon'sthree factors to "guid[e] [t]he general nature of our inquiry."
Ante, at 314 (internal quotation marks omitted) (citing
Bowen v.
Kendrick,487 U. S. 589, 602(1988)). In
Bowen, we looked to
Lemon as such a guideand determined that a federal grant program was not invalid on itsface, noting that "[i]t has not been the Court's practice, inconsidering facial challenges to statutes of this kind, to strikethem down in anticipation that particular applications may resultin unconstitutional use of funds." 487 U. S., at 612 (internalquotation marks omitted). But here the Court, rather than lookingto
Lemon as a guide, applies
Lemon's factorsstringently and ignores
Bowen's admonition that mereanticipation of unconstitutional applications does not warrantstriking a policy on its face.
320v.
Chambers,463 U. S. 783 (1983), and
Larson v.
Valente, 456 U. S. 228 (1982)]"). Indeed,in
Lee v.
Weisman,505 U. S. 577 (1992), anopinion upon which the Court relies heavily today, we mentioned,but did not feel compelled to apply, the
Lemon test. Seealso
Agostini v.
Felton,521 U. S. 203, 233 (1997)(stating that
Lemon's entanglement test is merely "an aspectof the inquiry into a statute's effect");
Hunt v.
McNair,413 U.S. 734, 741 (1973) (stating that the
Lemon factors are"no more than helpful signposts").Even if it were appropriate to apply the
Lemon test here,the district's student-message policy should not be invalidated onits face. The Court applies
Lemon and holds that the "policyis invalid on its face because it establishes an impropermajoritarian election on religion, and unquestionably has thepurpose and creates the perception of encouraging the delivery ofprayer at a series of important school events."
Ante, at317. The Court's reliance on each of these conclusions misses themark.First, the Court misconstrues the nature of the "majoritarianelection" permitted by the policy as being an election on "prayer"and "religion." 2 See
ante, at 314, 317. To the contrary,the election permitted by the policy is a two-fold process wherebystudents vote first on whether to have a student speaker beforefootball games at all, and second, if the students vote to havesuch a speaker, on who that speaker will be. App. 104-105. It isconceivable that the election could become one in which studentcandidates campaign on platforms that focus on whether or not theywill2 The Court attempts to support its misinterpretation of thenature of the election process by noting that the districtstipulated to facts about the most recent election. See
ante, at 317, n. 24. Of course, the most recent election wasconducted under the
previous policy-a policy that requiredan elected student speaker to give a pregame invocation. See App.65-66, 99-100. There has not been an election under the policy atissue here, which expressly allows the student speaker to give amessage as opposed to an invocation.
321pray if elected. It is also conceivable that the election couldlead to a Christian prayer before 90 percent of the football games.If, upon implementation, the policy operated in this fashion, wewould have a record before us to review whether the policy, asapplied, violated the Establishment Clause or unduly suppressedminority viewpoints. But it is possible that the students mightvote not to have a pregame speaker, in which case there would be nothreat of a constitutional violation. It is also possible that theelection would not focus on prayer, but on public speaking abilityor social popularity. And if student campaigning did begin to focuson prayer, the school might decide to implement reasonable campaignrestrictions.3But the Court ignores these possibilities by holding that merelygranting the student body the power to elect a speaker that maychoose to pray, "regardless of the students' ultimate use of it, isnot acceptable."
Ante, at 316. The Court so holds despitethat any speech that may occur as a result of the election processhere would be
private, not
government, speech. Theelected student, not the government, would choose what to say.Support for the Court's holding cannot be found in any of ourcases. And it essentially invalidates all student elections. Anewly elected student body president, or even a newly elected promking or queen, could use opportunities for public speaking to sayprayers. Under the Court's view, the mere grant of power3 The Court's reliance on language regarding the studentreferendum in
Board of Regents of Univ. of Wis. System v.
Southworth,529 U. S. 217 (2000), tosupport its conclusion with respect to the election process ismisplaced. That case primarily concerned free speech, and, moreparticularly, mandated financial support of a public forum. But asstated above, if this case were in the "as applied" context and wewere presented with the appropriate record, our language in
Southworth could become more applicable. In fact,
Southworth itself demonstrates the impropriety of making adecision with respect to the election process without a record ofits operation. There we remanded in part for a determination of howthe referendum functions. See
id., at 235-236.
322to the students to vote for such offices, in light of the fearthat those elected might publicly pray, violates the EstablishmentClause.Second, with respect to the policy's purpose, the Court holdsthat "the simple enactment of this policy, with the purpose andperception of school endorsement of student prayer, was aconstitutional violation."
Ante, at 316. But the policyitself has plausible secular purposes: "[T]o solemnize the event,to promote good sportsmanship and student safety, and to establishthe appropriate environment for the competition." App. 104-105.Where a governmental body "expresses a plausible secular purpose"for an enactment, "courts should generally defer to that statedintent."
Wallace, 472 U. S., at 74-75 (O'CONNOR, J.,concurring in judgment); see also
Mueller v.
Allen,463 U. S. 388,394-395 (1983) (stressing this Court's "reluctance to attributeunconstitutional motives to the States, particularly when aplausible secular purpose for the State's program may be discernedfrom the face of the statute"). The Court grants no deferenceto-and appears openly hostile toward-the policy's stated purposes,and wastes no time in concluding that they are a sham.For example, the Court dismisses the secular purpose ofsolemnization by claiming that it "invites and encourages religiousmessages."
Ante, at 306; Cf.
Lynch, 465 U. S., at 693(O'CONNOR, J., concurring) (discussing the "legitimate secularpurposes of solemnizing public occasions"). The Court so concludesbased on its rather strange view that a "religious message is themost obvious means of solemnizing an event."
Ante, at 306.But it is easy to think of solemn messages that are not religiousin nature, for example urging that a game be fought fairly. Andsporting events often begin with a solemn rendition of our nationalanthem, with its concluding verse "And this be our motto: 'In Godis our trust.'" Under the Court's logic, a public school thatspon-
323sors the singing of the national anthem before football gamesviolates the Establishment Clause. Although the Court apparentlybelieves that solemnizing football games is an illegitimatepurpose, the voters in the school district seem to disagree.Nothing in the Establishment Clause prevents them from making thischoice.4The Court bases its conclusion that the true purpose of thepolicy is to endorse student prayer on its view of the schooldistrict's history of Establishment Clause violations and thecontext in which the policy was written, that is, as "the lateststep in developing litigation brought as a challenge toinstitutional practices that unquestionably violated theEstablishment Clause."
Ante, at 308-309, 315. But thecontextattempted compliance with a District Court order-actuallydemonstrates that the school district was acting diligently to comewithin the governing constitutional law. The District Court orderedthe school district to formulate a policy consistent with FifthCircuit precedent, which permitted a school district to have aprayer-only policy. See
Jones v.
Clear Creek IndependentSchool Dist.,977 F.2d963(CAS 1992). But the school district went furtherthan required by the District Court order and eventually settled ona policy that gave the student speaker a choice to deliver eitheran4 The Court also determines that the use of the term"invocation" in the policy is an express endorsement of that typeof message over all others. See
ante, at 306-307. A lesscynical view of the policy's text is that it permits many types ofmessages, including invocations. That a policy tolerates religiondoes not mean that it improperly endorses it. Indeed, as themajority reluctantly admits, the Free Exercise Clause mandates suchtolerance. See
ante, at 313 ("[N]othing in the Constitutionas interpreted by this Court prohibits any public school studentfrom voluntarily praying at any time before, during, or after theschoolday"); see also
Lynch v.
Donnelly,465 U. S. 668, 673 (1984)("Nor does the Constitution require complete separation of churchand state; it affirmatively mandates accommodation, not merelytolerance, of all religions, and forbids hostility towardany").
324invocation or a message. In so doing, the school districtexhibited a willingness to comply with, and exceed, EstablishmentClause restrictions. Thus, the policy cannot be viewed as having asectarian purpose.5The Court also relies on our decision in
Lee v.
Weisman,505U. S. 577 (1992), to support its conclusion. In
Lee, weconcluded that the content of the speech at issue, a graduationprayer given by a rabbi, was "directed and controlled" by a schoolofficial.
Id., at 588. In other words, at issue in
Lee was
government speech. Here, by contrast, thepotential speech at issue, if the policy had been allowed toproceed, would be a message or invocation selected or created by astudent. That is, if there were speech at issue here, it would be
private speech. The "crucial difference between
government speech endorsing religion, which theEstablishment Clause forbids, and
private speech endorsingreligion, which the Free Speech and Free Exercise Clauses protect,"applies with particular force to the question of endorsement.
Board of Ed. of Westside Community Schools (Dist. 66) v.
Mergens,496U. S. 226, 250 (1990) (plurality opinion) (emphasis inoriginal).Had the policy been put into practice, the students may havechosen a speaker according to wholly secular criterialike goodpublic speaking skills or social popularity-and the student speakermay have chosen, on her own accord, to deliver a religious message.Such an application of the policy
5 Wallace v.
Jaffree,472 U. S. 38 (1985), isdistinguishable on these grounds. There we struck down an Alabamastatute that added an express reference to prayer to an existingstatute providing a moment of silence for meditation.
Id.,at 59. Here the school district added a secular alternative to apolicy that originally provided only for prayer. More importantly,in
Wallace, there was "unrebutted evidence" that pointed toa wholly religious purpose,
id., at 58, and Alabama"conceded in the courts below that the purpose of the statute wasto make prayer part of daily classroom activity,"
id., at77-78 (O'CONNOR, J., concurring in judgment). There is no suchevidence or concession here.
325would likely pass constitutional muster. See
Lee, supra,at 630, n. 8 (SOUTER, J., concurring) ("If the State had chosen itsgraduation day speakers according to wholly secular criteria, andif one of those speakers (not a state actor) had individuallychosen to deliver a religious message, it would be harder toattribute an endorsement of religion to the State").Finally, the Court seems to demand that a government policy becompletely neutral as to content or be considered one that endorsesreligion. See
ante, at 305. This is undoubtedly a newrequirement, as our Establishment Clause jurisprudence simply doesnot mandate "content neutrality." That concept is found in ourFirst Amendment
speech cases and is used as a guide fordetermining when we apply strict scrutiny. For example, we look to"content neutrality" in reviewing loudness restrictions imposed onspeech in public forums, see
Ward v.
Rock AgainstRacism,491 U. S.781 (1989), and regulations against picketing, see
Boosv.
Barry,485U. S. 312 (1988). The Court seems to think that the fact thatthe policy is not content neutral somehow controls theEstablishment Clause inquiry. See
ante, at 305.But even our speech jurisprudence would not require that allpublic school actions with respect to student speech be contentneutral. See,
e. g., Bethel School Dist. No . .1,03 v.
Fraser,478 U.S. 675 (1986) (allowing the imposition of sanctions against astudent speaker who, in nominating a fellow student for electiveoffice during an assembly, referred to his candidate in terms of anelaborate sexually explicit metaphor). Schools do not violate theFirst Amendment every time they restrict student speech to certaincategories. But under the Court's view, a school policy under whichthe student body president is to solemnize the graduation ceremonyby giving a favorable introduction to the guest speaker would befacially unconstitutional. Solemnization "invites and encourages"prayer and the policy's content limitations
326prohibit the student body president from giving a solemn, yetnonreligious, message like "commentary on United States foreignpolicy." See
ante, at 306.The policy at issue here may be applied in an unconstitutionalmanner, but it will be time enough to invalidate it if that isfound to be the case. I would reverse the judgment of the Court ofAppeals.
