Nobody in the audience could have plausibly concluded that she was speaking for the school district or that government was endorsing Christian belief. If the school was worried on this point, it could have made unmistakable disclaimers after reading her text. There is a catch-22, however. By requiring students to submit texts in advance, the schools involve themselves in the editing process, thus inviting judges to rule that the talks are indeed state-sponsored.
Officials relied heavily on the argument that McComb was proselytizing, not just expressing her religious beliefs. One version of her original text, circulating on the Internet, does not seem to be proselytizing at all. Besides, government shouldn't be in the business of judging the content and appropriateness of religious expression. It should just get out of the way and let valedictorians control their own message.
I think it's tacky to make anything more than a glancing reference to one's own faith to a diverse and captive audience at a commencement. On the other hand, I think these speakers have a clear First Amendment right to say what they think is relevant on the big day. The republic won't fall if an 18-year-old feels the need to attribute school success to Muslim, Christian, Wiccan or vegetarian principles.
One problem here is the great bugaboo of the culture wars: sensitivity. Many people think they have a right never to be annoyed, never to hear anything they disagree with. In one California case, decided against a religion-minded salutatorian, a federal judge wrote that "Forcing a dissenter to make the choice between attending ... and participating in a religious practice in which the dissenter does not agree is not constitutionally permissible." That is one sensitive judge. She thought listening to a student's speech was like compelling attendance at someone else's religious service.
Writing in 2001 about another such suit, columnist Cathy Young said: "As applied in this case so far, the First Amendment seems to be less a guarantee of religious freedom than a speech code guaranteeing that no one's feelings are hurt."
In the McComb case, the ACLU cites two 9th Circuit decisions. Why not? Both were on the ACLU's side. But there are two decisions in other circuits that go the other way. It's surely time for the Supreme Court to decide.
COPYRIGHT 2006 JOHN LEO
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