FREEDOM. 21 September Via U.S. Mail & Facsimile at (865) Dr. Jimmy G. Cheek. Office of the Chancellor

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1 FOR FAITH FOR IUSTICE ALLIANCE DEFENDING 1000 HUIIiCEFF Soas Pc N E Sue LEwrerce le i, BOO Fax AIIan5.x0eiendIn(I7Iecorn arc separation of church and state. In reality, [t]his extra-constitutional construct The FFRF s entire analysis rests on a vastly overstated view of the so-called from its events, including football games. I. The First Amendment does not require the University to strip prayer even clergy-led prayers at university events as consistent with the Establishment Clause. Increasingly, federal courts have also rejected FFRF s effort to purge public ceremonies of all things religious by inventing a distinction between sectarian and nonsectarian prayers. Thus, we applaud your decision to celebrate rather than squelch the religious heritage and traditions of your students. Contrary to FFRF s letter, federal courts of appeals have unanimously upheld mental rights. Our Education Project is dedicated to ensuring that religious and learn on an equal basis with all other students and faculty. conservative students and faculty may exercise their rights to speak, associate, and legal ministry that defends and advocates for religious freedom and other funda By way of introduction, the Alliance Defending Freedom is an alliance-building Amendment, one that wrongly views all religious expression with a jaundiced eye. eral appellate courts that have considered prayers at university events. Sadly, FFRF has mischaracterized the law to support its skewed understanding of the First football games and other events with prayer. Yesterday, we also learned you had de cided that the University will continue to allow prayers before University events. ten you complaining about the University of Tennessee s tradition of opening home We recently learned that the Freedom from Religion Foundation (FFRF) had writ We write to applaud your decision, which is consistent with decisions from both fed Dear Dr. Cheek: Re: Pre-Game Prayers & the First Amendment Knoxville, Tennessee Andy Holt Tower University of Tennessee at Knoxville Office of the Chancellor Dr. Jimmy G. Cheek Via U.S. Mail & Facsimile at (865) FREEDOM

2 The oft-repeated misleading metaphor does not require the state to be their adversary. 4 It does not exclude religious has grown tiresome, especially since the First Amendment does not demand it. state to be a neutral in its relations with... religious believers and non-believers; it tion or the debates surrounding it. The Establishment Clause merely requires the 2 does not appear anywhere in the Constitu Page 2 of 6 I ACLUofKy. v. Mercer County, 432 F.3d 624, 638 (6th Cir. 2005). 2 Wallace v. Jaffree, 472 U.S. 38, 92 (1985) (Rehnquist, J., dissenting). I Everson v. Bd. of Educ., 330 U.s. 1, 18 (1947): see also Capitol Square Rev. & Advisory Bd. v. Pi 6 Chaudhuri, 130 F.3d at Id. at Id. (quoting Lee, 505 U.s. at 597). See id. at (Rehnquist, J., dissenting) (tracing debates surrounding the formation and rat 505 U.S. 577 (1992), because of the maturity of the audience). CoNsTITutIoN, & REIdGI0N 13, (2000). nette, 515 U.s. 753, 760 (1995) (noting that religious speech is not a First Amendment orphan ). Id. at 236. Id. at 237; see also id. at (distinguishing university prayers from those in Lee v. Weisrnan. Id. cert. denied 523 U.s (1998). Tanford v. Brand, 104 F.3d 982 (7th Cir. 1997); Chaudkuri v. Tennessee, 130 F.3d 232 (6th Cu. 1997), ification of the First Amendment); see also DAvEI) BAl ron. OIIGINAI. INTFNT: TKl COLJR i S, THI: Similarly, in 1995, a professor and three students sued officials at Indiana Uni [tjhe people of the United States did not adopt the Bill of Rights to strip the public public occasion. 7 Of course, prayer is an unquestionably religious activity, but 10 Of course, someone may find] the prayers offensive, but that reaction, in ers. ence of college-educated adults could be influenced unduly by prayers of the sort in fact that the university graduation audience consists of adults, which minimizes university functions violated the First Amendment. these prayers have a secular purpose by serv[ingl to dignify or to memorialize a question here. 9 Indeed, [t]here was absolutely no risk that [the professor] or any square of every last shred of public piety. other unwilling adult listener would be indoctrinated by exposure to the pray and of itself, does not make them unconstitutional Also, the Sixth Circuit focused on the 6 The Sixth Circuit ruled that sity in 1991, claiming that the clergy-led invocations and benedictions at various any potentially coercive effect: It would not be reasonable to suppose that an audi As you know, an engineering professor sued officials at Tennessee State Univer unanimity among the circuits strongly confirms that including prayers in gradua enth Circuits ruled that those prayers comply with the First Amendment. 5 This ers at colleges and universities the U.S. Courts of Appeal for the Sixth and Sev tion ceremonies and football games is completely constitutional. Accordingly, both federal appellate courts that have considered graduation pray purge it from all public ceremonies. speech from full First Amendment protection or require college administrators to

3 ceremony violated the Establishment Clause. 12 But as the Seventh Circuit high Page 3 of 6 versity, claiming that the clergy-led invocation and benediction at the graduation lighted, these prayers differed dramatically from those at high school graduations, where the audience largely consisted of children. was no coercion real or otherwise to participate [in the prayers]. 4 Students 3 In a university context, there less impressionable than younger students and should be able to appreciate that the University s F.3d at 986 (same). cuit concluded that the First Amendment was not intended to prohibit [state uni. versities] from sanctioning ceremonial invocations of God. Such simply.. action v. Weisman, 505 U.S. 577 (1992), and Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 12 Tanford, 104 F.3d at :3 Id. at Id 15 Id. at (citing Widmar v. Vincent. 454 U.S. 263, 274 n. 14 ( University students Id. at 986 (quoting Marsh v. Chambers. 463 U.S. 783, 792 (1983)). Id. (citing Lynch v. Donnelly. 465 U.S. 668, 693 (1984) (O Connor. J., concurring). 18 Id. (quoting Sherman v. Crnty. Consol. Sch. Dist. 21, 980 F.2d 437, 448 (7th Cir. 1992) (Manion, 19 Id. at Chaudhuri, 130 F.3d at ; Tanford, 104 F.3d at Chaudhuri, 130 F.3d at 236; see also id. at 237 (citing Marsh, 463 U.S. at ); Tanford, 104 J., concurring)). policy is one of neutrality of religion. )). are versity ceremonies is widespread throughout the nation University to purge its home games and other events of all things religious. applaud you for recognizing that the Establishment Clause does not require the 290 (2000), inapplicable). two federal appellate courts have upheld clergy-led prayers at university events, we country since well before the founding of the Republic. 20 In fact, university prayers are far closer to prayers be 21 But fundamentally, since fore legislative bodies, prayers that have been customary at civic affairs in this differ from their high school counterparts due to the adult audience (rendering Lee 9 and that these prayers cases exist. Yet these two cases show that the tradition of including prayers in uni striking down prayers in a university context. It does not do so because no such Though FFRF tries to dismiss or ignore these two cases, it points to no cases does not amount to an establishment of religion. 6 They serve[d] legitimate secular purposes of solemnizing public occa 8 country. present and free to ignore the cleric s remarks. 15 The Seventh Circuit went on to throughout the ceremony. Also, the mature stadium attendees were voluntarily freely chose whether to participate in the graduation and could come and go simply a tolerable acknowledgment of beliefs widely held among the people of this observe that the prayers which are widespread throughout the nation were sions rather than approving particular religious beliefs. 17 Thus, the Seventh Cir

4 FFRF attempts to evade the clear implications of Tanford and Chaudhuri by suggesting that the University should parse sectarian from nonsectarian pray prayer review board, deciding whether the content is too sectarian. Page 4 of 6 II. The First Amendment does not authorize university officials to act as a overtly sectarian, The content of the prayer is not of concern to judges where, as here, there is no vance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particu course, all prayers advance a particular faith or believe in one way or another, but the mere fact a prayer evokes a particular concept of God is not enough to run afoul of the Establishment Clause. 22 R. Luther III & D. Caddell, Breaking Au ay fro,n the Prayer Police Why the First Amendment Perm its Sectarian Legislative Prayer and Demands a Practice Focused Analysis, 48 SANTA CLARA L. REv. 569, 571 (2008) ( There had been virtually no litigation or legal authority concerning the consti tutionality of sectarian legislative prayer until the last six years. ). 23 Ch.audhuri, 130 F.3d at (citing Marsh, 463 U.S. at ); Tanford, 104 F3d at 986 (same). 24 See Neudow v. Bush, 355 F. Supp. 2d 265, 285 n.23 (D.D.C. 2005); see also Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism. 96 CoIuM. L. Riv. 2083, 2104 n.118 (1996) (noting that from 1989 to 1996, over two hundred and fifty opening prayers delivered by congres sional chaplains [1 included supplications to Jesus Christ ). 25 Marsh, 463 U.S. at ; see also Lee, 505 U.S. at (noting that the school should not have directed and controlled the content of the prayers ). 26 Chaudhuri. 130 F.3d at 237 (quoting Marsh, 463 U.S. at ). 27 Snyder v. Murray City Corp., 159 F.3d 1227, 1234 n.10 (lot.h Cir. 1998); see also Id. ( Rather. what is prohibited by the clause is a more aggressive form of advancement. i.e., proselytization. defined as convert[ing] citizens to particular sectarian views. ) contrary to the command of Marsh that courts are not to evaluate the content of the contention that the Establishment Clause only permits nonsectarian prayers is 27 The Eleventh Circuit similarly ruled that FFRF s refusal to evaluate the content of prayers. The Tenth Circuit observed that [o]f Both the Tenth and Eleventh Circuits have expounded on the Supreme Court s Sixth Circuit quoted this very language in upholding the prayers in Chaudhuri. 2 This refusal to act as a prayer review board is particularly apropos here because the lar prayer. 25 indication that the prayer opportunity has been exploited to proselytize or ad 24 the Supreme Court has refused to adjudicate their content: them to prayers before legislatures as both contexts involve public ceremonies with In upholding prayers at university events, the Sixth and Seventh Circuits likened an adult audience. 23 Though prayers before Congress and state legislatures are often lenges to so-called sectarian prayers are a new phenomenon. 22 without citing any governing cases upholding this distinction, partly because chal ers, an exercise federal courts have declined as unsound and unworkable. It does so

5 theologians, not courts of law. 3 ences qualifies as sectarian or not. Hence, in upholding the prayers, it decline{d] Lords or the God of Abraham, Isaac, and Mohammed are sectarian is best left to prayers absent evidence of exploitation. this role of ecclesiastical arbiter, 28 It also noted that courts are inherently 29 concluding that [wjhether invocations of Lord of Page 5 of 6 incapable of deciphering whether each variation in the kaleidoscope of religious refer FFRF also claims that pre-game prayers will offend a significant portion of the may not prohibit the expression of an idea simply because society finds the idea itself the bedrock principle underlying the First Amendment... is that the government Amendment exists to protect controversial speech, even if it is religious. 3 After all, community. While this is not accurate, we applaud you for recognizing that the First simply because it might offend. III. The First Amendment does not permit the University to ban speech offensive or disagreeable. is simple: they can avert their eyes. course until it is palatable to the most squeamish among us. And this bedrock principle applies with full force to universities for the First The Supreme Court has held time and again, both within and outside of the school is not sufficient justification for prohibiting it. Indeed, the Sixth Circuit echoed 28 Pelphrey v. Cobb County, 547 F.3d 1263, 1268, 1271 (11th Cir. 2008). 3 Id. at is as fully protected under the Free Speech Clause as secular private expression Indeed... a freespeech Dist., 240 F.3d 200, 206 (3d Cir. 2001) (Auto, J.). Ter,niniello v. City of Ciii., 337 U.S. 1, 4 (1949). :31 See Cohen v. California. 403 U.S. 15, (1971). 32 Texas v. Johnson, 491 U.S. 397, 414 (1989) (citing cases upholding this principle); see also For syth Cnty. v. Ga. Nationalist Movement, 505 U.S. 123, (1992); Saxe v. State Coil. Area Sc/i. clause without religion would be Hamlet without the prince. ) Id. at 25. Saxe. 240 F.3d at 215 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969): Johnson, 491 U.S. at 414; Street v. New York. 394 U.S (1969); Doe i. Univ. of Mich., 721 F. Supp. 852, 863 (ED. Mich. 1989)). Id. at Papish v. Bd. of Curators of Univ. of Mo., 410 U.S. 667, 671 (1973). See Pinette, 515 U.S. at 760 ( [P]rivate religious speech, far from being a First Amendment orphan, context, that the mere fact that someone might take offense at the content of speech community with respect to the content of speech. 36 As then-judge Auto observed: Amendment leaves no room for the operation of a dual standard in the academic 31 But government cannot cleanse public dis When people confront expression they find offensive, the First Amendment solution ates dissatisfaction with conditions as they are, or even stirs people to anger. 33 It may indeed best serve its high purpose when it induces a condition of unrest, cre 32 One of the functions of free speech is to invite dispute. 35

6 In his Farewell Address, George Washington observed: Of all the dispositions **** this principle while upholding graduation prayers. 38 Page 6 of 6 Pi i iu Liunci. Gr;ouG1 W\sHINc I on s SACRED Fnn (2006); George Washington, Ad (Baltimore, George & Henry S. Keatinge, 1796), quoted in BAR I on, supra note 3. at 117. and of itself, does not make them unconstitutional. ). dress of George VVashington, President of the United States... Preparatory to his Declination Chauclhuri. 130 F.3d at 239 ( [Some] may have found the prayers offensive, but that reaction, in ALLIANCE DEFENDING FREEDOM Litigation Staff Counsel TriJ1ititop r aiham cerel, assment from that organization, please do not hesitate to contact us. respecting your students freedoms and traditions. Should you face further har Accordingly, thank you once again for rejecting FFRF s misplaced claims and for God s protection and blessing on their players and fans. officials to respect and cherish our religious heritage and to allow the invocation of unanimously agreed. Nothing in the Constitution prohibits these prayers, and a veri table chorus of Supreme Court cases prohibits the University from banning speech When it comes to prayers at university events, federal appellate courts have simply because some might find it offensive. It is both lawful and wise for University and to cherish them. A volume could not trace all their connections with private and public felicity. 39 Thank you for standing in this tradition. ble supports.... The mere Politician, equally with the pious man, ought to respect and habits which lead to political prosperity, Religion and morality are indispensa.