dissenting:
I respectfully dissent. Realizing that the Court here has tried to faithfully follow the controlling authorities in this very difficult field of constitutional law, I nevertheless think that it has pushed the Establishment Clause further than it needs to be pushed to preserve the rights there sought to be protected, and that the district court properly determined that the facts here do not transgress the admonition against making a “law respecting the establishment of religion.”
Before the opening kick-off at high school football games in Douglas County, Georgia, a minister, or more recently, a randomly selected student, parent or faculty member, delivers an “invocation.” The majority holds that this practice violates the Establishment Clause. I am unwilling “to press the concept of separation of Church and State to these extremes,” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952). I would affirm the district court’s decision that the equal access plan violates neither the Georgia nor the United States Constitution; I would hold that the controversy involving the school’s traditional practice was moot and vacate the declaratory decree on that issue; and I would reverse the plaintiffs’ attorney’s fee award on the ground that plaintiffs were not the prevailing party.
Constitutionality of Equal Access Plan
Establishment Clause cases present the difficult task of attempting to reconcile the constitutional prohibition against law respecting the establishment of religion with the American national identity as “a religious people whose institutions presuppose a Supreme Being.” Zorach, 343 U.S. at 313, 72 S.Ct. at 684. Out of the “tangle of establishment clause doctrine,” Van Zandt v. Thompson, 839 F.2d 1215, 1218 (7th Cir.1988), emerge two distinct methods of analysis for such cases. The most established of these is the three-part inquiry formalized in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Under this analysis, a challenged *836practice will be upheld if: (1) it has a secular purpose; (2) its primary effect is neither to advance nor inhibit religion; and (3) it does not foster excessive Government entanglement in religion. Id. at 612-13, 91 S.Ct. at 2111.
The Supreme Court, however, has refused to be “confined to any single test or criterion in this sensitive area,” Lynch v. Donnelly, 465 U.S. 668, 679, 104 S.Ct. 1355, 1362, 79 L.Ed.2d 604 (1984), and in a recent case, Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), the Court developed an alternative approach to Establishment Clause challenges. This approach, based on history and tradition, simply holds that there are certain practices which, although religious in nature, are not an establishment of religion or a step toward establishment, but are rather a “tolerable acknowledgment of beliefs widely held among the people of this country.” Id. at 792, 103 S.Ct. at 3336. In Marsh, the Court upheld the Nebraska Legislature’s use of a chaplain, hired and paid by the State, to deliver invocations at each session.
The scope of Marsh has not been defined. The fact that the Lemon analysis was employed in Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) and Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987), cases decided after Marsh involving Establishment Clause challenges in the public school context, indicates that Marsh is of limited utility in dealing with the issue of prayer in schools. Edwards, 107 S.Ct. at 2577 n. 4 (“[Marsh’s] historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted.”). Accord Graham v. Central Community School Dist. of Decatur County, 608 F.Supp. 531, 535 (S.D.Iowa 1985) (“Marsh decision is a singular Establishment Clause decision that rests on the ‘unique history’ of legislative prayer, and the holding of that case is clearly limited to the legislative setting.”); Bennett v. Livermore Unified School Dist., 193 Cal.App.3d 1012, 238 Cal.Rptr. 819 (1987); Kay v. David Douglas School Dist. No. 40, 79 Or.App. 384, 719 P.2d 875 (1986), vacated as moot, 303 Or. 574, 738 P.2d 1389 (1987), cert. denied, — U.S.-, 108 S.Ct. 740, 98 L.Ed.2d 775 (1988). See also Smith v. Board of School Comm’rs of Mobile County, 827 F.2d 684, 689 (11th Cir.1987) (noting that Lemon test applies to Establishment Clause cases in public school setting).
To note that there are limits on the applicability of the Marsh analysis does not indicate, however, that the analysis is irrelevant to Establishment Clause cases. The principles announced in Marsh have been employed in recent decisions by the Sixth and Seventh Circuit Courts of Appeals. In Van Zandt v. Thompson, 839 F.2d 1215 (7th Cir.1988), the court found that Marsh controlled an Establishment Clause challenge to a House Resolution providing for a prayer room in the Illinois State Capitol. In so holding, the court rejected as “much too crabbed” the district court’s view that Marsh was “ ‘a decision wedded to the unique historical circumstances’ of that ease — a one-time departure from the Court’s consistent application of the Lemon criteria to establishment clause cases.” Id. at 1219.
In Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir.1987), the Court applied Marsh to determine the constitutionality of invocations and benedictions at high school graduation ceremonies. The court read Marsh as upholding practices such as invocations and benedictions that are religious in origin, but have become essentially secularized over the course of this country’s history. Thus the court held that neutral or “civil” invocations and benedictions would be constitutionally permissible at a high school graduation ceremony, id. at 1409, but found that the invocations and benedictions delivered in that case were not sufficiently neutral. Id. at 1410. Although I tend to concur in the analysis and conclusion of Judge Well-ford’s dissent, it is interesting to note the language of the court in Stein, which applied Marsh in spite of the fact that the challenged practice occurred in a school-*837sponsored event, and distinguished the school prayer eases in the following manner:
[U]nlike classroom prayer, ceremonial invocations and benedictions present less opportunity for religious indoctrination or peer pressure.... Although children are obviously attending the ceremony, the public nature of the proceeding and the usual presence of parents act as a buffer against religious coercion. In addition, the graduation context does not implicate the special nature of the teacher-student relationship — a relationship that focuses on the transmission of knowledge and values by an authority figure. Therefore, the prayer in question here should be analyzed under the Marsh standards for ceremonial prayer notwithstanding the fact that a school function is involved.
Id. at 1409-10.
While it is not a “perfect fit,” I believe that the case is more like Marsh than the school prayer cases such as School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) and Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980). Accordingly, I would analyze the validity of the high school football game invocations under the principles enunciated in Marsh, rather than under those enunciated in Lemon.
In Marsh, the Supreme Court found that the Framers of the Constitution “did not consider opening prayers as a proselytizing activity or as symbolically placing the government’s ‘official seal of approval on one religious view/ ” but rather viewed “invocations as ‘conduct whose ... effect ... harmonize[d] with the tenets of some or all religions.’ ” Marsh, 463 U.S. at 792, 103 S.Ct. at 3336 (citing McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 1113-14, 6 L.Ed.2d 393 (1961)). Noting also that there was no significant potential for indoctrination in the legislative setting, the Court concluded that the “practice of prayer similar to that now challenged.... presents no more potential for establishment than the provision of school transportation, beneficial grants for higher education, or tax exemptions for religious organizations.” Marsh, 463 U.S. at 791, 103 S.Ct. at 3335-3336 (citations omitted).
The ceremonial invocations that open public high school games in Douglas County are facially constitutional under Marsh. These invocations add solemnity and dignity to a public event, preserve a long-standing and widespread tradition and remind participants and spectators of the importance of high ideals and values, such as sportsmanship and fair play at an athletic event. While the invocations at the football games may take the form of prayer, both the short duration of the invocations and the context in which they are delivered seem to alleviate any risk that the invocations will be used to proselytize or convert. Under the school’s revised plan, where volunteer speakers are chosen at random from students, faculty and parents without regard to their religious or lack of religious beliefs and where there is no participation of or identification with ministers or their churches, the neutrality of the invocations can be presumed. The invocations here appear to be no more an endorsement of Protestant Christianity or of religion than the legislative prayer upheld in Marsh.
The indoctrination concerns raised in classroom prayer cases such as School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), are not implicated here. Football games in Douglas County are community events, and according to the district court’s findings, the audience at the games consists of a large proportion of adults. Most students who attend the games are sixteen to eighteen years old and younger students are often accompanied by their parents. The invocations do not occur in a classroom or instructional setting, involving the student-teacher relationship, but instead take place after school hours. Football, band and related activities are extracurricular, and attendance at the football games is entirely voluntary. The invocations are given only five times a year, so there is no danger of daily indoctrination as there is when structured prayer is a part of a classroom setting. It is not improper to recog*838nize that the attendees at these events reflect varying degrees of participation and non-participation in these exercises, and that complete disregard or lack of attention results in no adverse consequences to the individuals. I believe that the invocations attempt to provide a solemn opening to a public event without creating the potential for indoctrination, so under Marsh, the practice does not constitute the establishment of religion.
Even if this case is outside the scope of Marsh, working through the Lemon factors, in my judgment, leads to the same conclusion reached under the alternative analysis suggested by Marsh.
Under the first prong of the Lemon test, a challenged practice must have some legitimate secular purpose, but its purposes need not be. exclusively secular. Lynch v. Donnelly, 465 U.S. 668, 680, 104 S.Ct. 1355, 1362-1363, 79 L.Ed.2d 604 (1984). Thus, in spite of the fact that the invocations delivered at football games in Douglas County are in essence short, public prayers, the practice may still be acceptable as long as the school’s actual purpose in maintaining the tradition is not “to endorse or disapprove of religion.” Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 86 L.Ed. 29 (1985).
In Karen B. v. Treen, 653 F.2d 897 (5th Cir. Unit A Aug. 1981), aff'd, mem., 455 U.S. 913, 102 S.Ct. 1267, 71 L.Ed.2d 455 (1982), the Court struck down a statute providing for prayer in the public schools. In finding that the statute had no secular purpose, the Court discussed the intrinsically religious nature of prayer. While that case might seem to stand for the principle that no practice inherently religious in character may pass muster under Lemon’s first prong, a closer reading shows that the Court simply rejected the proffered secular purpose as a sham. Id. at 900-01. This interpretation of the case is consistent with Supreme Court decisional law. Lynch, 465 U.S. at 680, 104 S.Ct. at 1362 (“Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause.”).
Invocations have been recognized to have secular purposes. These include “solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.” Id. at 693, 104 S.Ct. at 1369 (O’Connor, J. concurring). See Stein v. Plainwell Community Schools, 822 F.2d 1406, 1409 (6th Cir.1987) (invocation and benediction at high school graduation serve “solemnizing” function); Bogen v. Doty, 598 F.2d 1110, 1113 (8th Cir.1979) (invocations at County Commission meetings “directed toward establishing a solemn atmosphere and serious tone for the board meetings”); Colo v. Treasurer and Receiver General, 378 Mass. 550, 559, 392 N.E.2d 1195, 1200 (1979) (secular purposes of invocations at legislative sessions are “the maintenance of long tradition and the continuation of a ritual which prompts legislators to reflect on the gravity and solemnity of their responsibilities and of the acts they are about to perform.”); Marsa v. Wemik, 86 N.J. 232, 248, 430 A.2d 888, 896-97 (invocations at borough council meetings serve as a “call to conscience” and create “an atmosphere conducive to open exchanges, cooperative participation, and tolerant and conscientious deliberations of all those present_”), cert. denied, 454 U.S. 958, 102 S.Ct. 495, 70 L.Ed.2d 373 (1981).
The district court found that the invocations at Douglas County High School football games serve the secular purposes of continuing a custom and tradition of longstanding, adding a tone of solemnity and dignity to the proceedings, and reminding the spectators and players of the importance of sportsmanship and fair play. These findings are not clearly erroneous and should not be disregarded by an appellate court. The existence of these legitimate secular purposes indicates that the school’s actual purpose in continuing the invocations is not to endorse or disapprove of any religion. The first prong of the Lemon analysis is satisfied.
The inquiry next focuses on whether the practice of opening public high school football games with an invocation has the primary effect of either advancing or inhibit*839ing religion. Put another way, the “effect prong ... asks whether, irrespective of the government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.” Smith v. Board of School Comm’rs of Mobile County, 827 F.2d 684, 690 (11th Cir.1987) (citing Wallace v. Jaffree, 472 U.S. 38, 56 n. 42, 105 S.Ct. 2479, 2489 n. 42, 86 L.Ed.2d 29 (1985)).
As I read the cases, this aspect of Lemon has become a question of degree. The Supreme Court has made it “abundantly clear ... that ‘not every law that confers an “indirect,” “remote,” or “incidental” benefit upon [religion] is, for that reason alone, constitutionally invalid.’ ” Lynch v. Donnelly, 465 U.S. 668, 683, 104 S.Ct. 1355, 1364, 79 L.Ed.2d 604 (1984) (citing Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 771, 93 S.Ct. 2955, 2964-65, 37 L.Ed.2d 948 (1973)). Examples of practices cited as acceptable because of their insubstantial effect on religion include the printing of “In God We Trust” on coins, the reference to God in the Pledge of Allegiance, the exhibition of religious paintings in governmentally supported museums, tax exemptions for religious organizations and the use of the phrase “God save the United States and this honorable court” to open court sessions. But cf. Hall v. Bradshaw, 630 F.2d 1018, 1021 (4th Cir.1980) (“A prayer, because it is religious, does advance religion, and the limited nature of the encroachment does not free the state from the limitations of the Establishment Clause ... No de minimis exception is tolerable.”), cert. denied, 450 U.S. 965, 101 S.Ct. 1480, 67 L.Ed.2d 613 (1981).
Invocations at Douglas County High School games are given five times per season, are sixty to ninety seconds in duration, and are not delivered by clergymen, but rather by volunteers who are chosen without regard to their religious beliefs or lack thereof. Given these facts, it cannot be said that such invocations advance religion in any significant way or convey a message of endorsement for a particular religious creed. See Bogen v. Doty, 598 F.2d 1110, 1114 (8th Cir.1979) (“[W]e suggest that establishing solemnity is the primary effect of all invocations at gatherings of persons with differing views on religion.”); Grossberg v. Deusebio, 380 F.Supp. 285, 290 (E.D.Va.1974) (“[T]he Court is not convinced that the primary effect of the invocation will be either doctrinal dissemination or a manifestation of governmental affinity for religion. Such substance is rarely the result of high school graduation exercises.”).
Lemon’s last prong reviews the degree of governmental entanglement with religion engendered by the challenged practice. Under the school’s revised plan for invocations, the school has no contact with churches or clergymen and school officials do not control or monitor the content of the invocations. The district court found that the cost to broadcast the invocations over the course of a season amounted to $1.08. These facts reveal no danger of excessive entanglement resulting from the pre-game invocations.
The expenditure of $1.08 for the invocations raises another issue, however, that of the permissibility of the invocations under the Georgia Constitution. Article I, section 2, paragraph 7 of the Georgia Constitution provides: “Separation of church and state — No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution.” I would hold that there is no violation of this provision here because, as noted above, I do not believe that the invocations do aid or advance any particular church, sect, cult or religious denomination. Moreover, plaintiffs’ position that the clause is violated by even a de minimis expenditure is difficult to square with Georgia’s practice of paying a salary to its legislative chaplain. See Marsh, 463 U.S. at 794 n. 18, 103 S.Ct. at 3337 n. 18 (noting that Georgia is among the states that provide compensation to its chaplains).
Mootness of Challenge to Traditional Invocation Practice
I would deem moot the Jagers’ challenge to the invocations given before adoption of *840the equal access plan. The resolution of this issue turns on an analysis of Hall v. Board of School Comm’rs of Conecuh County, 656 F.2d 999 (5th Cir. Unit B Sept. 1981) and Saladin v. City of Milledgeville, 812 F.2d 687 (11th Cir.1987). In the former case, this Court held that an Establishment Clause challenge to a school policy allowing students to conduct morning devotionals over the school’s public address system was not moot, even though the school had discontinued the practice when the filing of the lawsuit was imminent. The Court noted that jurisdiction abates because of mootness when there is no reasonable expectation that the alleged violations will recur and when intervening events have completely and irrevocably eradicated the effects of the alleged violations. In finding that these criteria were not met, the Court focused on the fact that defendants asserted the constitutionality of the challenged activity up to the day of trial, even though the activity was clearly unconstitutional under School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and was so recognized by the school superintendent. Hall, 656 F.2d at 1000.
In Saladin, the Court was faced with an Establishment Clause challenge to the design of a city seal, featuring a winged figure holding a banner inscribed with the words “Liberty” and “Christianity.” The Court held that the challenge to the display of the seal on the city’s water tank, vehicles and uniforms was moot because the city had agreed to remove the seal everywhere except on city stationery and documents. The Court based its decision on the fact that the city was no longer displaying the seal in the challenged locations, had promised not to display the seal in the future and there was no “basis for believing that the City will break its word.” Saladin, 812 F.2d at 693.
I believe that Saladin controls this case. The key factor here is that the school system has not simply abandoned its earlier practice of using local ministers to deliver invocations, it has actually replaced this practice with a plan to select invocation speakers randomly from a pool which excludes clergymen. With this revised plan in place, adopted by consensus among school officials, there is no reasonable expectation that the activity initially challenged in this case will recur. While it is true that the school defended the traditional practice even though it had abandoned it, this fact is not dispositive because, unlike in Hall, the practice here was not clearly unconstitutional. Thus, the school’s defense of its traditional practice does not clearly show either a desire to reinstate the practice or a dogmatic belief in its validity. The issue was moot as a matter of fact, even though both parties litigated the request for a declaratory decree. The law is clear that a court may not render advisory opinions on moot issues even though requested to do so by both parties. See, e.g., Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 7-8, 98 S.Ct. 1554, 1559-60, 56 L.Ed.2d 30 (1978) (parties cannot “by stipulation invoke the judicial power of the United States in litigation which does not present an actual ‘case or controversy.’ ”); Kremens v. Bartley, 431 U.S. 119, 136, 97 S.Ct. 1709, 1719, 52 L.Ed.2d 184 (1977) (issues deemed moot even though “all parties earnestly seek a decision on the merits.”).
Attorney’s Fees
The issue of mootness dovetails with the issue of plaintiffs’ entitlement to attorney’s fees as the prevailing party in this suit. Plaintiffs prevailed in this case only to the extent that the district court declared the school’s traditional policy to be unconstitutional. Because I believe that this controversy was moot, I would not reach the issue of the constitutionality of the traditional practice under the standards discussed above. Thus, I would hold that it cannot be determined whether plaintiffs would remain the prevailing parties on appeal as far as their challenge to the traditional practice. Accordingly, I would reexamine plaintiffs’ status as prevailing parties.
The caselaw of this Circuit allows a party to recover fees when remedial action by defendants effectively moots the controver*841sy subsequent to the filing of the suit. Iranian Students Ass’n v. Sawyer, 639 F.2d 1160, 1163 (5th Cir. Unit A March 1981). In order to recover fees in the situation where there is no formal judicial relief, plaintiffs must show that “their lawsuit is a substantial factor or a significant catalyst in motivating the defendants to end their unconstitutional behavior.” Robinson v. Kimbrough, 652 F.2d 458, 466 (5th Cir.1981). It is not enough, however, to show that the defendants acted just because they had knowledge that litigation might occur.
On September 15, 1986, school officials announced the implementation of new procedures for pre-game invocations. Because plaintiffs’ lawsuit was not filed until September 19, 1986, it is clear that the remedial action taken by the school was not precipitated by the plaintiffs’ suit. While the change in procedures may well have been taken because of the concern about a lawsuit, this is not sufficient to entitle plaintiffs to attorney’s fees. In fact, because of the firm position of plaintiffs in negotiations to accommodate their views, the school officials could have well expected suit in spite of their implementation of the new plan. I believe plaintiffs should not be considered prevailing parties in their challenge to the school’s traditional plan for delivering invocations. I would vacate plaintiffs’ fee award because, as the discussion above indicates, I believe that plaintiffs should not prevail in their challenge to the equal access plan.
Conclusion
The caselaw developed under the Establishment Clause has grown very complex, and there seems to exist a case for and against each proposition furthered by any party. There is a common thread, however, running through the majority of cases decided under both Marsh and Lemon: a common-sense balancing of the danger of Government establishment of religion with the recognition that religious traditions are a part of our nation’s fabric. While I have applied tests and analyzed cases to reach what I believe to be a principled result in this case, I have also attempted to approach the issues in this commonsense fashion. Both paths lead to the same conclusion: the opening of public high school football games with an invocation does not constitute Government establishment of religion.