The ACLU suffered two minor defeats in the legal skirmish over high school prayer Friday, but the bigger battle looms as the ACLU seeks a preliminary injunction that would prohibit graduation prayers at all Utah high schools this year.
U.S. District Judge Thomas Greene handed the ACLU the first defeat when he ruled that the ACLU's graduation prayer lawsuit be put on hold until the U.S. Supreme Court has ruled on a similar case from Rhode Island.Although the ACLU had agreed to let the U.S. Supreme Court decide whether prayer at high school graduations in Utah violated the U.S. Constitution, it urged Greene to proceed with consideration on whether the prayers violated the state constitution.
The ACLU also urged Greene to immediately send the state constitutional questions raised in its suit to the Utah Supreme Court for review. Greene handed the organization its second defeat Friday when he refused to do that, saying that the questions of state constitutionality might be influenced by what the U.S. Supreme Court decided in the Rhode Island case and should be put on hold along with the federal issues.
"We will see more clearly after we see what the U.S. Supreme Court does," Greene told lawyers for Granite and Alpine school districts and the ACLU.
Neither ruling will make a whit of difference when graduation rolls around this year. However, the ACLU filed a brief in federal court Thursday asking for a court-ordered prohibition on prayer at graduation ceremonies in June.
Prayers held at this year's graduations would cause "an injury that echoes throughout the entire school system, sending a message of endorsement of religious activities," ACLU attorney Mike O'Brien told Greene.
Attorneys for the two school districts argued that if Greene prohibited prayer at this year's graduation ceremonies "people who believe it should be allowed would be unhappy."
The issue of who would or wouldn't be harmed by a preliminary injunction is a critical one. Greene reminded the ACLU that in order to get an injunction against this year's prayers the organization must prove that irreparable harm will be done by the prayers, the public interest is best served by the injunction, an injunction has a balanced impact on both parties and the party seeking the injunction is likely to win when its case goes to court.
Greene hinted that he might be amenable to an injunction, stressing that the "dramatic difference" between the Utah case and the Rhode Island case is that an injunction is in place in Rhode Island. "I'm not going to shut the door on that (the injunction)," Greene told the ACLU's attorneys.
ACLU attorney Mike O'Brien found that remark the bright spot in Friday's hearing. "It gave me hope when he said that," O'Brien said.
In an attempt to prove irreparable harm to its plaintiffs, the ACLU wants to amend its lawsuit to include the names of students who will be graduating this year from high schools in the Granite and Alpine districts.
The lawsuit, filed following last year's graduation ceremonies, names students who graduated last year. However, the ACLU may have a hard time proving that those students will be harmed by prayers at this year's graduation.
The ACLU brief filed Thursday seeks to add the names of Orem High seniors Jennifer Blacklock and Jeannie Ingram to its list of plaintiffs. The organization also seeks to add two Olympus High seniors, identified as W.J. and M.J., and Orem High teacher Pamela Child to the list.
The ACLU also asked Greene to issue a preliminary injunction prohibiting all school prayer, citing recent incidents of other prayers being held at schools in the two districts.
Greene refused, noting that both school districts have policies prohibiting unconstitutional prayer. He said he didn't think an injunction would stop such prayers any more successfully than district policy did.
"Someone might sneak around and pray either in secret or in public even if there is an injunction," Greene said.
Alpine School District attorney Brinton R. Burbidge concurred. "If there are violations of the policy (on prayer), we ask those who have observed the violations to come forward, and we will deal with them appropriately."
Greene scheduled a hearing April 8 at 10 a.m. to listen to arguments over whether the ACLU should be allowed to amend its complaint.