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Burden of Proof

Supreme Court Rejects Student-Led Prayer at Texas H.S. Football Games; U.S. Appeals Court to Consider Request from Microsoft

Aired June 19, 2000 - 12:30 p.m. ET



MELISSA ROGERS, BAPTISTS JOINT COMMITTEE: Any reasonable observer would see this as an endorsement of prayer when it is given from the government-controlled mic, as a part of the program, and that is coercive of students who are simply coming for a public school football game.

UNIDENTIFIED MALE: Christians are part of the public.

UNIDENTIFIED MALE: We are standing for freedom from religion.

JAY SEKULOW, SANTA FE SCHOOL DISTRICT ATTORNEY: It allowed for speech that was a message, secular message, or an invocation, so it's neutral on its face. It says: Say whatever you want to say.


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: The U.S. Supreme Court rules that students cannot lead other students in prayer at a high school football game. Plus, how will campaign 2000 reshape the bench of the highest court in the land?

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.

Thirty-eight years ago, the United States Supreme Court handed down a landmark ruling which outlawed officially sponsored prayer in public schools. Today, the high court further reinforced that position, saying that public school districts cannot let students lead stadium crowds in prayer before high school football games. In a 6-3 decision, the court said such prayers violated the constitutionally required separation of church and state.

Joining us today from Boston is law professor Sam Bagenstos, a former Supreme Court clerk. And here in Washington, Brian Jones, constitutional law scholar Bruce Fein, and law professor Father Robert Drinan, who is also a priest. And in our back row, Eric Forsyth (ph), Bonnie Vaughan (ph) and Jim Screws (ph).

And joining us from outside the United States Supreme Court is CNN's senior Washington correspondent Charles Bierbauer.

Charles, first to you, what did the Supreme Court say today?

CHARLES BIERBAUER, CNN SR. WASHINGTON CORRESPONDENT: The Supreme Court said, in essence, that the student-led prayer at the high school football games in Santa Fe, Texas was an unconstitutional breach of the separation of church and state, coming out of the First Amendment.

Justice John Paul Stevens, writing for majority of six justices, said that, in essence, this amounted to a government sponsored event on government property coming out of a government policy. It did allow the students to elect the person who would give this -- these comments, these remarks before the football game, but Justice Stevens said that there was no way that a minority viewpoint could be heard in what amounted to a majoritarian election that would certainly support the majority view of that Texas community.

VAN SUSTEREN: Charles, what were the facts underlying this dispute?

BIERBAUER: I'm sorry.

VAN SUSTEREN: What were the facts underlying this dispute?

BIERBAUER: The facts underlying the dispute? Well, it seems to boil down to a question of whether this was a student-led or a school- supported activity, and the school had adopted several different policies over the stretch of time. Initially, there was a school chaplain who would lead the pre-game exercises. When that seemed very much to be in question, the school changed its policy to create this forum whereby the students could select someone to deliver the message. It could be uplifting, there were certain limitations on it, but what the justices found it essentially did encourage religious speech.

VAN SUSTEREN: Father, the Supreme Court gets the last word, but we talk about it anyway. Do you agree or disagree with what the Supreme Court did today?

REV. ROBERT DRINAN, LEGAL ETHICS PROFESSOR: I think it's consistent with all their ruling. It is not substantially different from Lee v. Weisman, which about 10 years ago, they said that no public school at its graduation may have a rabbi or a priest, any official prayer. So it's not new, they are reaffirming the very conservative Fifth Circuit Court of Appeals in Texas.

However, it doesn't solve the problem that many people perceive, that they want religion in their schools. This is particularly acute in Texas. I'm certain there is going to be political consequences of this. But I think it is consistent.

This group, understandably, heavily Baptist, say that we want to sort of dominate this whole area. A Catholic girl and a Mormon boy sued and they prevailed. I hope that somehow we can quiet this and have a rational discussion of the place of prayer in the public school. VAN SUSTEREN: Should prayer have a place in public schools, father?

DRINAN: No, I think that the Supreme Court has been consistently right, going back to Schempp in 1963: The bible may not be read, compulsory prayers may not be heard; and Lee v. Weisman, that you can't have a prayer at graduation. So it is consistent.

Some people would fundamentally disagree, but I think it is consistent with the First Amendment.

VAN SUSTEREN: Sam, do you disagree or agree with the Supreme Court's decision today?

SAM BAGENSTOS, LAW PROFESSOR: Well, I agree with the Supreme Court, and Father Drinan, I think, said it as well as it can be said. I mean, this was a case that was really very close to the cases the Supreme Court has consistently, over the last 40 years, said are inconsistent with the First Amendment. You had effectively a state sponsored prayer at a very important public event. High school football games in Texas are, as I think everyone knows, incredibly important, as far as social events; they are incredibly important for people to attend. And so, when the state said: We are going to allow to you select one of your number who will deliver an invocation or a prayer, as Charles Bierbauer said, they started off by saying, you will elect one of your number as a school chaplain. I think that is really very far across the line of separation of church and state.

VAN SUSTEREN: Bruce, I know you disagree, and I want you to tell me why, but before, has the court ever defined what prayer is? where do we draw that line?

BRUCE FEIN, CONSTITUTIONAL LAW SCHOLAR: Well, the court has not necessarily stated: This is prayer, this is secular message. I don't know that the facts have ever required them to address that particular issue. They have referred, in other cases, to what is the meaning of religion, and said: Well, it doesn't necessarily have to be a religion in the way we understand people of the book, the Christians or the Jews or the Muslims, as long as it plays a role in the individual's life that's comparable to religion, that would be treated as religious expression.

If you go to the issue here, I think it has been somewhat misstated because the whole question was whether or not this was a state-sponsored religion or not. There is free exercise clause in the First Amendment of equality dignity of the separation clause. And the question here was whether or not, when it was not required that the pre-game statement be religion, it could be secular, and the students vote for it, is that a state sponsorship of what is being stated?

VAN SUSTEREN: Except that the Constitution, which I happened to hold in my hand, if the students elect someone to deliver a prayer or a pep talk or whatever it is, it is the majority invoking their views on the minority, and the Constitution doesn't need to protect the majority, it needs to protect the minority. FEIN: But not in all cases, sometimes the majority has its way. There's nothing wrong, if both the secular and the religious view have an equal playing field to solicit the attention of the students. It's similar to case where the court has said: If the state puts up a bulletin board or it is going to subsidize student journals, and it subsidizes secular student journals, then the religion viewpoint have to be given equal time.

VAN SUSTEREN: Father, do you agree with Bruce?

DRINAN: No, I think they carefully distinguish the Rosenberg case, that is what Mr. Fein referred to. I think this is different. This is the majority view, this is not really an election, this says to all those that dissent that you really don't belong to this community. And it is foolish to say: Well, children don't have to go to the football game, they do, de facto, there's a compulsion. Clearly, there is a strict compulsion for those in the band, those who are playing, and other people, the student officials.

FEIN: But I think that's a little bit too facile, Father Drinan, for this reason: Suppose you had a situation where the public school played a private religious school, and it was an away game, and all the public school students are fanatic about football, so they feel compelled to attend the game on the playing field of the private school. Is what the court and Father Drinan saying, that private religious school can't have prayer, even though it is private building, private grounds, private enterprise? That is state sponsorship because they happen to have a cross-league play with a public school. That's doesn't seem to me to make any sense.

DRINAN: It is not a very good hypo.

FEIN: Why not?

DRINAN: Let's assume...

FEIN: Well, why not? Explain why not.

DRINAN: Because this is a different setting, and it is not the compulsion of the state. It would be, let's assume, the Catholic nuns saying that you have to pray before the game.

FEIN: The state is not compelling any student to attend the Texas football games, and you know that Father Drinan, public or private, that is a private choice.

VAN SUSTEREN: Let me go back to Charles.

Charles, there were three dissenters. Who were the dissenters on this decision?

BIERBAUER: Well, no surprise, it is Chief Justice Rehnquist, Justice Scalia and Justice Thomas. And they, in fact, found that this would be private, rather than government, speech. And the chief justice, in writing his dissent, let me read you just one sentence, said that the court's opinion, the majority opinion, "bristles with hostility to all things religious in public life," and went on to cite George Washington and a whole bunch of other reasons why there is a place for some sort of religious expression in government life.

So this is a very sharp divide between the conservative justices and those in the majority, in this case, six of them.

VAN SUSTEREN: Sam, I always try to figure out a solution to these problems. You know, people have a right to practice religion, and we also have to be careful that the government doesn't get involved per the Constitution. But is there a solution so that those students who want to have some sort of prayer can have prayer? and those who don't want to have it inflicted upon them because they don't agree can avoid it? do you have some solution?

BAGENSTOS: Well, I think that Justice Stevens' opinion in this case actually provided a solution for that. Now, what has to be made clear here is this was an instance of a bunch of students getting together in a huddle on the field before the game and kneeling down and praying, this was the state saying very specifically: You get one person, you get to elect one person who will deliver one message. It wasn't like Bruce Fein says, a competing arena of ideas. This was one message, the message of the majority.

VAN SUSTEREN: What if it were rotating? What if there was a rotation, Sam? Let me just ask that, Sam. If there were a rotation of students who would get every religion, would that make a difference?

BAGENSTOS: Well, I mean, it's not -- that would be a different case from the one that's here. But it seems to me what Justice Stevens said in this case was, look, people can, on their own terms, on their own -- of their own accord, get together and pray. They can pray -- you know, people -- I know people pray before tests during school, people can pray after school, people can pray on their own, but without the state saying, we're going to set up a structure whereby there will be prayer before, there will be an invocation -- which everybody in this case recognized was prayer -- before every football game, and that we are going to provide the microphone and that we are going to say you get only one representative who's going to deliver it.

I think trusting the individual -- a very conservative principle here -- trusting individuals and groups of people to get together and not bring the arm of the state involved is the proper solution here, and I think Justice Stevens said so.

FEIN: I think that misstates this critical fact: It wasn't that the vote required this selected person to delivery a religious message, they could equally deliver a secular message. That's what I meant by being evenhanded.

VAN SUSTEREN: And you get the last word on this particular case before the United States Supreme Court because we need to take a break.

And, Charles Bierbauer, thank you for joining us today from outside the United States Supreme Court.

Up next, the future of the Supreme Court and how this year's election could have a major impact on the supreme bench. Stay with us.


On this day in 1953, Julius and Ethel Rosenberg were executed by electric chair. They were convicted of assisting a Los Alamos spy to pass atomic secrets to the Soviet Union.



VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log onto We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

In just two weeks, the United States Supreme Court will take a three-month long summer break. They'll return in the fall to hear more cases during the height of a presidential race which could shape its direction in the coming years.

Father Drinan, what impact do you think this presidential election will have on the United States Supreme Court?

DRINAN: Well, I think the decision today will have a big impact. George W. Bush filed a personal amicus brief in favor of the losing side, and that...

VAN SUSTEREN: In the case that came down today.

DRINAN: That's right, in the case -- and that obviously has to be defended by him now. He will almost inevitably make this a crusade, that if I am elected, I will appoint justices for whom the litmus paper is: Will they allow prayer in schools over football games? And if he goes that way, then he'll get the evangelicals: 70 percent of the people in America. All people do, in fact, want prayer in the public schools. It's a favorable thing.

VAN SUSTEREN: So it's a good -- it's a smart political move maybe, aside from, you know, whether or not someone supports it in his heart and mind.

DRINAN: Well, theoretically. But it will be a lesson for every -- for the whole country, and what the decision today said exactly. Four of the six people who prevailed were appointed by Republicans. So it's not as if this is in the Republican platform. It maybe there, but this can be quite crucial. And I don't know what Al Gore is going to say today about this decision. It's pretty hard to punt. He may say, well, this is tradition. But someone predicted today there might be a civil war in Texas over this, the renewed ban on prayer at football games.

So, obviously this thing. Also, very shortly, they're going to decide the case of partial-birth abortion, and that it's conceivable that they will throw that out. That was adopted by law in some 30 states, but the Nebraska statute is quite defective.

So, on these two issues, the election will have a lot to say.

VAN SUSTEREN: Bruce, Al Gore and George W. Bush, will they appoint two very different people to the Supreme Court, do you think?

FEIN: Well, it depends a lot on the makeup of the Senate. If the Senate remains Republican, that means if Bush is elected, he'll have a much easier time about being able and willing and inclined to appoint someone who would be more in the mold of a philosophical muscle of Justice Scalia, who he has explicitly singled out as someone who he would hope to emulate in appointments. And...

VAN SUSTEREN: But if you're talking to voters, though, do you want to say to voters, you better make sure when you vote for president that you know you're going to vote for a strong left turn or right turn in the Supreme Court?

FEIN: Well, you don't know exactly at present, again, because the makeup of the Senate will be pivotal here. The candidate Bush has stated he will not use a litmus test. He specifically disavowed that, and I applaud that. On the other hand -- and I think Gore has equally avoided stating explicitly that he would have litmus tests as well. And, therefore, I don't think that it's -- that a typical voter would really have a clear grasp on how these particular appointments of a president is going to affect the future decisions of the U.S. Supreme Court.

VAN SUSTEREN: Sam, if there's a retirement after the end of the term, which is the end of this month, do you think that we'll be able to get Senate hearings and confirmation by the end of the Clinton term or not?

BAGENSTOS: Well, first of all, it doesn't seem to be likely that would happen. But if by some chance someone were to retire in three weeks from now, it seems to me almost impossible as a political matter that a successor would be appointed and confirmed. I mean, you know, there's about to be an election where one of two new people will be deciding whom to appoint.

VAN SUSTEREN: Will they select two very different people?

BAGENSTOS: I would think so. I mean, I guess, unlike Bruce Fein, I would tend to trust what George Bush has said on the stump, and he said the model of person who he would appoint to the Supreme Court is Justice Scalia. He hasn't said, well, it sort of depends and I'd consider all the options. I think saying, Justice Scalia is my model is a very coy way of saying, I don't have a litmus test but, in fact, my appointees, wink, wink, are going to follow the right-hand line on all of the issues. Justice Scalia...


VAN SUSTEREN: Hold that, Bruce. We've got to take...

FEIN: And his father appointed David Souter and George -- and the son has not said two words bad.

VAN SUSTEREN: And I think he's been a little bit surprised by that appointment.

But we need to take a break. Up next, an appeals court will hear a request from Microsoft. Will this delay the breakup of the software giant? Stay with us.


Q: The trial starts today in a lawsuit brought by Branch Davidian survivors. The government is being accused of causing the deaths of about 80 sect members.

How much are Branch Davidian survivors suing the government for?

A: $675 million.



VAN SUSTEREN: A U.S. appeals court has agreed to hear a request from Microsoft. The software company wants to delay its breakup, imposed by a federal judge earlier this month.

Bruce, Microsoft wants to go to the U.S. court of appeals, the Justice Department wants to leapfrog the U.S. court of appeals and go directly to the Supreme Court. How can that happen?

FEIN: Well, this is a very unique area of law where Congress decided in certain antitrust cases that were so important for economic certainty that cases go from the district court to the Supreme Court that it enacted something called the Expediting Act, and if the district court certifies that a case is of extreme national interest, and then a party to the case can ask that the court of appeals be bypassed, and the U.S. Supreme Court take the case directly.

In this instance, the Department of Justice has repeated that, in order to get -- move forward on this restructuring of Microsoft, that would basically separate its browser from its operating software, it is very critical that the Supreme Court decide, and decide quickly, because otherwise you really won't have any but really modest remedies relating to behavior that will take effect during the arduous process of going to the court of appeals.

My own view, looking at the past use of the Expediting Act, the Supreme Court is likely to take this case.

VAN SUSTEREN: Sam, let go to you. I mean, does the Supreme Court often sort of big foot the U.S. court of appeals in incidents like that? and the second part of my question is, the U.S. court of appeals have been a much friendlier forum for Microsoft, how important is it to Microsoft that they go first to the court of appeals?

BAGENSTOS: Well, as to the first question, I think this is kind of a once in a lifetime case, and so really it's not -- it's not likely that precedent is going to be much of a guide. I think Bruce Fein is right, though, that this is the kind of case the court is likely to want to get its hands on.

As to whether it is important, it seems to me Microsoft certainly wants to be in D.C. Circuit Court of Appeals because they've been friendly to them in the past, but I think the Supreme Court is a real wild card here. I don't think there's any telling what they are going to do in a case like this.

VAN SUSTEREN: But Sam, at least if Microsoft gets to the United States court of appeals, they might sort of be able to readjust the issues a little bit. They will be framed, perhaps, a little differently by the time it gets to the Supreme Court. rather than having sort of the trial court judge frame the issues for the parties. Doesn't that sort of have some, at least a little bit of advantage to Microsoft, to go to the court of appeals first?

BAGENSTOS: Well, I mean, I think they know that the D.C. Circuit forum is friendly to them, and they are uncertain about the Supreme Court, and so that, in itself, weighs for going to the court of appeals.

They get to frame the questions presented on appeal to the Supreme Court as well. So I'm not sure how much weight they get out of that aspect. I think that the key difference is just that the D.C. Circuit has been friendly to them in the past on very similar issues.

FEIN: I think the key issue here is Microsoft wants delay because the separation of them into two companies is not going to occur until they have a final judgment. The whole marketplace could be so altered by the time the Supreme Court gets and decides it after it goes to the court of appeals, it could make the structural remedy totally moot.

VAN SUSTEREN: Other than the issue of time, we have only a few seconds left, Bruce, is it important, in terms of how the case gets to the Supreme Court, for Microsoft that they have one review in the U.S. court of appeals?

FEIN: No, this case will pivot on the facts and conclusions of law that have already developed at the district court level. It will make no difference in the final outcome.

VAN SUSTEREN: And I disagree with you, Bruce, on that. I would rather have my shot on the U.S. court of appeals. But that's all the time we have for today. Thanks to our guests and thank you for watching.

Today on CNN's "TALKBACK LIVE," at the height of the vacation season, the price of gasoline is going through the roof. That's at 3:00 p.m. Eastern time, noon Pacific.

And tomorrow on our program: disappearing and reappearing hard drives at Los Alamos. Is there a spy among us? Join us then for another edition of BURDEN OF PROOF.



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