Of Football, ‘Footnote One,’ and the Counter-Jurisdictional Establishment Clause: The Story of Santa Fe Independent School District v. Doe

Abstract

This article is a chapter in the forthcoming collection First Amendment Stories. It tells the story of Santa Fe Independent School District v. Doe, a case in which the United States Supreme Court struck down a school policy establishing an election mechanism that enabled student-led prayers before football games. It offers both a doctrinal and a human perspective on the case. In particular, this article focuses on two issues. First, it argues that the first footnote in the Supreme Court’s opinion in Santa Fe, recounting the strenuous efforts that both school officials and private citizens undertook to “ferret out” the identity of the anonymous plaintiffs in the case, deserves greater attention. “Footnote One” speaks volumes about why the election mechanism the school district tried to employ as a “circuit-breaker” between government speech and private speech failed, and more broadly about the meaning of the Establishment Clause in overwhelmingly religiously homogeneous jurisdictions. Second, it argues that for similar reasons, there are good grounds for thinking about the Establishment Clause in a “counter-jurisdictional” fashion: that is, despite its own language, the Establishment Clause should, if anything, be more strictly maintained at the state and local level than at the national level. This suggestion, which follows from the lumpy rather than even nature of religious diversity in the United States, runs counter to an increasing trend on the Court and in legal scholarship in favor of a “jurisdictional” reading of the Establishment Clause which would apply it more loosely at the state and local level than at the national level.