Scott Forsyth, The Daily Record Newswire
“But thanks be to God, which gives victory through our Lord Jesus Christ.” The verse comes from the New Testament, 1 Corinthians 15:57, to be exact.
Is the verse inspiring? Must be, because last fall the Kountze High School football team ran through a 30-feet-by-10-feet banner emblazoned with the verse in a pregame ceremony. For good measure, the cheerleaders underlined the word victory.
This was not an isolated occurrence. Before every game the team charged through a banner containing a different quote from the Bible.
Now, Kountze is located in southeast Texas, where high school football is king. The passion may explain the attempt to marry Scripture with the team.
The practice did not sit well with one person, who complained to the superintendent. He investigated and determined the practice was most likely unconstitutional. He banned the practice.
Upset, the parents of several cheerleaders sued in state court. They obtained a temporary restraining order allowing the practice to continue. This spring they moved for summary judgment, contending the banners were the private speech of the cheerleaders and the ban was a violation of the cheerleaders’ religious liberty rights.
The school district cross-moved, claiming the banners to be school-sponsored but arguing they did not violate the Establishment Clause. They were but “fleeting expressions of community sentiment.”
The court granted both motions without stating its reasons. The district appealed. The ACLU filed a friend-of-court brief challenging the entire practice, Kountze Indep. Sch. Dist. v. Matthews, No. 09-13-00251-CV (Tex. Ct. App. 9th Dist. 2013).
What is one to make of the situation? You have to start at the beginning.
The cheerleading squad is an “organized extracurricular activity of” the high school, on par with the athletic teams. The district pays two employees to supervise or “sponsor” the squad. For example, the sponsors set rules on what the cheerleaders will wear, how they will groom themselves, what routines they may use, and how they may comport themselves on and off the field.
The cheerleaders design and display the banners. The squad chooses the content by consensus, writes it up, and then shows the banner to a sponsor. She can modify the content or even veto its display if she deems it inappropriate. Actually the sponsors liked the Biblical quotes and approved all of them.
The squad unfurls the banner on the football field, just before the introduction of the team, near the home stand. The text faces the audience. Through the banner charge the players, to the roar of the spectators.
Before and during the game the school closes off the field to students but for the cheerleaders, the band and the players. The school does not allow any other student banners on the field.
The plaintiffs argue the cheerleaders were speaking for themselves, not the district, and doing so in a public forum. The facts mentioned above and other facts do not support them. The Bible verses are attributable to the district and constitute government speech. In its papers the district agrees. And this government speech violates the Establishment Clause.
One of the purposes of separating church from state is to ensure that persons may choose for themselves which faith, if any, to follow, free of government intrusion. Separating church and state does not deter the exercise of religious liberty, contrary to the plaintiffs. Separation actually promotes liberty.
Imagine a Muslim cheerleader or a Jewish football player at Kountze High School. Does the cheerleader refrain from selecting the Bible verse of the week and not hold up the banner on the field out of respect for her faith, or to go along with her peers does she fully participate, disrespecting her faith? Does the player step aside while his teammates barrel through the banner, isolating himself for all to see, or does he show he is just one of the boys, running through a banner that tells him that victory comes from a person he does not believe in?
The district “may not force this difficult choice upon” the students because “(i)t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice,” Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 312 (2000).
What about the spectator of a minority faith? He does not face the same choice. Nevertheless, he would be right in perceiving the banners as a district endorsement of Christianity.
The size of the banners, the location of their display, the size of the text, the role of the cheerleaders, and the ceremony before an official school event of which they are a part all would lead an objective observer to the conclusion on endorsement, Id. at 308.
There is no such thing as a de minimis defense to a violation of the Establishment Clause. Time is not a factor. The Supreme Court has invalidated graduation prayer as brief as two minutes. Lee v. Weisman, 505 U.S. 577 (1992).
That the banners may reflect community sentiment is also irrelevant. The First Amendment curbs the power of the majority to impose its views on the minority.
The Texas Court of Appeals should make matters right in Kountze. Its football team does not need divine inspiration to beat the opposing team.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
