Cheerleaders Win Trial on Religious Banners

The much-followed case in Kountze, Texas over whether cheerleaders can make huge banners with Bible verses on them for the football team to run through has its first real court ruling. A Texas state court judge has ruled in favor of the cheerleaders, but issued an opinion that has no substance whatsoever. The only thing the court says is:

The evidence in this case confirms that religious messages expressed on run-through banners have not created, and will not create, an establishment of religion in the Kountze community.

The Kountze cheerleaders’ banners that included religious messages and were displayed during the 2012 football season were constitutionally permissible.

Neither the Establishment Clause nor any other law prohibits the cheerleaders from using religious-themed banners at school sporting events. Neither the Establishment Clause nor any other law requires Kountze ISD to prohibit the inclusion of religious-themed banners at school sporting events.

That’s it, just a conclusion. There is no discussion at all of any legal precedents that justify that conclusion, no discussion of the question of private vs government speech or any other relevant questions in the case.

Texas Attorney General Greg Abbott issued a statement that says, in part:

“This is a victory for religious liberties and for high school cheerleaders who stood up to powerful forces that tried to silence their voices. The Freedom From Religion Foundation was wrong in trying to bully Kountze ISD into prohibiting the cheerleaders from displaying banners with religious messages.”

Uh huh. Now let a group of students in an identical situation do the same thing with verses from the Quran instead of the Bible and see how quickly Abbott tries to “bully” the school to prohibit that. I’d set the over/under at about 10 milliseconds.

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  • I take it no one has standing to file suit, instead of an attempted injunction.

  • That’s it, just a conclusion.

    Why bother to do any work on it when you know that, if it ever comes up in a court that actually takes the Constitution seriously, it would be overturned faster than a hummingbird’s heartbeat?

  • I’ll have to plead ignorance here and ask why cheerleaders making banners with bible verses on them falls afoul of the establishment clause, at least in and of itself.

    I suppose, to answer my own question, that use of such banners would have to be approved by either the cheerleading coach, the football coach, or school administration (or all such parties), which IMO would be a violation of the 1st Amendment.

  • Agreed, composer99. The details of this case are extremely important. If the banners are an open forum where anything short of obscenity is allowed, then it is student speech and should be protected as their freedom of religion. If the content is regulated, then it becomes government speech and should remain religiously neutral to avoid violating the establishment clause.

    Ed is definitely right about what would happen if the cheerleaders wrote Quran verses. I went on a right wing discussion board and brought this up. Their responses were the following:

    1) There’s no such thing as a Muslim cheerleader.

    2) Even if there was a Muslim cheerleader, she would be murdered by her family.

    3) Cheerleaders can’t put anything offensive on the banners. Quran verses would be offensive.

    4) This is a Christian nation and always has been, so of course we shouldn’t be putting Quran verses on school banners. Followed by a lie from David Barton.

    Ed, what is your actual opinion on the case (not the ruling)?

  • Alverant

    Ahh the Muslim test*, it never fails to expose christian privilige and elitism.

    *The Muslim Test is what I call it when you replace christian with muslim when it comes to a case of religious “liberty” and test the reaction of supports of the case. It’s a varient on IOKIYAR.

  • composer99 @ 3:

    The cheerleaders are on the field as representatives of the school and are, in fact, taking part in the game and its surrounding activities.

    As Americans United said:

    While the school may not have formally sanctioned the cheerleaders to use the signs, any group representing the school and using religious signs at official school events gives the appearance that the school approves of the faith being touted.

  • Subtract Hominem

    Okay, so to sum up:

    “BONG HiTS 4 JESUS” banner across the street from school? Restricted speech.

    Cheerleading 4 Jesus banners on school grounds? FREEZE PEACH!

  • abb3w

    I again suggest reading the case ruling from Santa Fe v Doe, just a few counties over — one of the main pieces of binding precedent from higher courts the judge neglected to address in his ruling.

  • John Hinkle

    Was the judge that guy from My Cousin Vinni?

  • Doug Little

    Is a high school footie match a captive audience?

  • This isn’t a Constitutional issue at all. Sports is higher than the Constitution. It says so right in the Constitution. As such, sports, and sports victories, come first. Think about it: if one team has God on their banner and the other doesn’t, who do you think He’ll help win, hmm?

  • Ben P

    I’ll go back to what I’m pretty sure I said Ed posted about this case initially. Never over-estimate the ability of local judges to go to bat for the home team.

    For those of you who might not remember. This is not a typical lawsuit.

    The Cheerleaders built banners with bible verses written on them for the football team to run through. Someone got wind of it and the Freedom From Religion Foundation wrote the school a letter like they write lots of schools letters. That letter said, more or less, that we believe this behavior is an establishment of religion, and if you don’t stop, we’ll sue the school.

    The School ordered the cheerleaders to stop making banners with bible verses.

    Subsequently, a number of Cheerleaders and their parents sued the school asking the judge for a declaratory judgment to say that the banners were OK. They know better than to sue in Federal Court for something like this, so they file the lawsuit in the district court of Hardin County, Texas.

    Despite the fact that the Texas AG’s office was defending the school, the AG”s office issued the press release ed quotes applauding their own loss .

    What will quite likely happen now is that someone will file suit in Federal Court, the federal court will wipe out the state court injunction under the supremacy clause, and consider the issue anew.

  • baal

    This judge had several delays during the pendency of the suit for no apparent reason than to allow his ‘temporary’ order to allow the banners to stand until the football season was over. The linked document, however, is more of an order than an opinion. As such, (and for not addressing relevant case law as Abb3y points out) he’s ripe for being overruled on appeal and order from a higher court to explain himself. All that would take a year or a year and a half. I’m convinced this judge knows these little details and is going against the law intentionally.

    That said, last detail I heard is that another (better framed) suit will be brought once the relevant plaintiffs are identified.

  • Sastra

    What about the Constitutional issue regarding the football players? Is there one?

    Apparently the cheerleaders are making these banners for the football team to run through (and break? or run in between? doesn’t matter.) Assume for the moment that one of the players is Muslim or Jewish or atheist or pagan or even a Christian with a disinclination to join his teammates in public and make a big hullabaloo and deal about Standing Up for Jesus rah rah rah.

    So what happens when he holds back — follows a different route — balks? He’s bound to be noticed … and we all know that isn’t going to turn out well for him and his family. Not with the coach, not with the fans, not with the team, not with the cheerleaders … not with the school and not with the city. He is basically screwed.

    Should the court take this into account? The public school is not just providing a forum for the cheerleaders to show the attendees that they’re Christian and proud of it — it’s setting up a situation where other students are either going to have to physically endorse the same message or mark themselves as not part of the happy Jesus crowd for everyone to see.

    Voluntary my ass. Not if you’re on the football team.

    And my guess is that any girl who wants to try out as cheerleader better damn well be a Christian. The school is advancing an entire system of discrimination.

  • But in Doe v. Silsbee Independent School District, the US Court of Appeals said:

    “In her capacity as cheerleader, H.S. served as a mouthpiece through which School District could disseminate speech”

    So when a cheerleader wants to be excused from cheering when her accused rapist is on the playing field, the courts maintain that cheerleaders are indeed an official mouthpiece of the school.

    Doe v. Silsbee

  • eric

    @10 – generally not. In some parts of the country (and TX may be one of them), attendence may be socially mandatory. As in; you will be a social pariah if you don’t attend. But as far as I know, nowhere in the US is attendence at a public HS football game mandatory in the formal, legal sense that going to class is mandatory. Except I guess if one is getting school credit for playing or cheering – if that’s the case, I suppose you could say the game IS the class.

  • Doc Bill

    Considering the source, this is Kountze, Texas, population 2,100 literally in the middle of nowhere. High school is about cheerleading and football. The plaintiff in the case, 32-year old mom and her 16-year old daughter, were both raised in the town and attended the same high school (and, I suspect, for a short period, at the same time). Mom was a cheerleader, too, a scant few years ago.

    This is a little, insular almost clan-like community for which Federal anything might as well be in France, assuming anyone in town could find France on a map. Yep, fine, upstanding Christian boys and girls. A place where boys drive pickups to pick up girls. From what I’ve seen from my vantage point in Houston, you’re born there, live there and die there. No runs, no drips, no errors. And nobody gives a rat’s ass, really, about a splash of tempera paint held up by a bunch of bubbleheaded cheerleaders in Kountze, Texas.

    It is worth noting, however, that the school administration at least realized there was a conflict and tried to nip it. Good for them.

    (end stereotype)

  • whheydt

    Just to add another data point…

    When I was a senior in high school in Southern California in 1965, attending football rallies during school hours was *mandatory*.

    As it happens, they could make me attend, but they couldn’t make me pay attention. At one memorable one, I sat in the back row (farthest from the sound system) reading a book. The coaches stood along the back wall where the exit doors were. One came over and took my book away. I took out and started reading another book. Rinse and repeat. After he’d collected three books, he gave up. At the end of the #$%^&*( rally, I walked up to him and held out my hand. He silently returned to books he’d taken (they were, in fact, *my* books).

    I understand that a year or two later, the school instituted a policy permitting students to go to the school library instead of the otherwise compulsory football rally.

    So…yeah. The cheerleaders are engaging in official speech and the school knows it, and so do the cheerleaders.

  • lofgren

    A group of students screened, selected, and trained by the school to perform chants and dances written and/or approved by the school for the express purpose of lauding the school with unearned, preemptive, and excessive praise in order to foster a cult-like devotion to goals whose sole purpose is to reinforce the school’s status through gladiatorial combat, at a school sponsored event while wearing official school uniforms, are not actually representatives of the school.

    Yeah, Imma go ahead and Godwin this bitch. This makes as much sense as Hitler throwing his hands up at a Berlin parade and saying “Gosh, I wish I could do something about all of these swastikas, but you know you have to let those SS guys express their individuality.”

  • dan4

    @19: So football=”gladiatorial combat” and cheerleaders and religious-themed banners is analogous to SS guys and swastikas. I can see you’re being rational about this matter (and if you think that preemptively declaring that you are going to “Godwin this bitch” should get you out of criticism on the second point, you’re mistaken).

  • lofgren

    dan4, do you know how an analogy works?