Vik Amar and I wrote a lengthy column on this case several years ago:
The Establishment Clause and the Free Speech Clause in the Context of the Texas High School Cheerleader Religious Banner Dispute Nov. 9, 2012 Justia.com Verdict. Our conclusion was that the cheerleaders should lose under either an Establishment clause or a Free Speech analysis. Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <lederman.ma...@gmail.com> Sent: Saturday, January 30, 2016 10:42 AM To: Law & Religion issues for Law Academics Subject: Re: Texas Cheerleaders display Bible Verses on banners Herewith, the briefs in the Texas Supreme Court: Cheerleaders’ Brief<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=12062a65-65f9-44a7-90b6-34da0e0da7a9&coa=cossup&DT=BRIEFS&MediaID=e616b07e-b3f3-4eef-90dd-b2cba8d2f314> School District Brief<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=d7ea2ab0-e759-427a-b556-1f4d5ff98e5e&coa=cossup&DT=BRIEFS&MediaID=32959254-780a-4281-8466-c85de7f3a51a>, which argues that the case is moot, and then, at the end, that even though the speech is that of the school district, it does not violate the EC, citing van Orden Brief for Amici Ted Cruz and John Cornyn<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=1c3a29d2-b5cd-4eb7-ae65-1fd44d76446b&coa=cossup&DT=BRIEFS&MediaID=5ac602e8-a411-4817-a4d4-c843b3105c63>, arguing that it’s not an EC violation because it’s private speech Brief for Amicus the State of Texas<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=a5de5583-3992-4a47-88a1-38830c404ae3&coa=cossup&DT=BRIEFS&MediaID=1c6fed76-baaa-4e0d-be8c-a8461347a613>, also arguing that it’s private speech Brief for Amicus the American Jewish Committee<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=beff7107-86be-41e8-9ee0-840da8e804b3&coa=cossup&DT=BRIEFS&MediaID=4c71abeb-3d45-4e82-bcc5-a6863b853abf>, arguing that the case is moot but that, on the merits, the trial court reached the wrong result on the Establishment Clause issue, “in the absence of genuine adversary argument” Brief for Amici ACLU and Americans United<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c9491c85-166e-4b5d-b02d-bb2f0970e3f9&coa=cossup&DT=BRIEFS&MediaID=a62bbd06-6536-4b95-8b5c-38c2c973ad8a>, arguing that it’s an EC violation Reply Brief for the Cheerleaders<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c31bbddb-6a69-490b-b73e-8032cbf8f6a0&coa=cossup&DT=BRIEFS&MediaID=e6ba8867-e8f9-479c-be22-8766c71d1d66> On Sat, Jan 30, 2016 at 1:24 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: Here's what's happened in this very confusing case. Warning: It's not very comprehensible. But what is clear is that no court has (thus far) actually adjudicated any substantive dispute, on the merits, about any state or federal constitutional question: 1. The cheerleaders of the Kountze Independent School District (KISD) have traditionally constructed and displayed "run-through" banners that KISD players tear through as they storm the field before every game. For years, the cheerleaders have placed inspirational religious messages on the banners, often based on Bible verses, e.g.: “A lion, which is strongest among beasts and turns not away from any.” “I can do all things through Christ who strengthens me.” “If God is for us, who can be against us?” “But thanks be to God which gives us victory through our Lord Jesus Christ.” 2. Freedom from Religion Foundation sent a letter to KISD, arguing that the practice violates the EC. The District, apparently without conceding the FRF constitutional claim prohibited the signs, at least for the purpose of heading off an FRF lawsuit. 3. The cheerleaders then sued the District, under the State Constitution free speech and free exercise clauses, and obtained a P.I. 4. The District then determined that the EC does not bar the practice, and rescinded its prohibition on the display of religious messages, while continuing to assert that it has an "unfettered" authority to prohibit the content of such signs. 5. At this point, on summary judgment, the trial court issued a "declaratory" judgment, agreed to by both the District and the cheerleaders, that in relevant part states “[n]either the Establishment Clause nor any other law prohibits the cheerleaders from using religious-themed banners at school sporting events.” (Again: Neither party argued that the EC does bar such banners.) 6. After the judgment was issued, the cheerleaders claimed that the order effectively confirmed their state constitutional right to speak -- that it is private speech -- but District officials insisted that it only resolved the EC question, and that the court had not precluded the district from theoretically limiting the content of the banners, because it is government-controlled speech. Because of this dispute, the cheerleaders apparently took an interlocutory appeal, although it's not at all obvious what they were appealing from, since they approved of the trial court's declaratory order. 7. The only issue the Texas Supreme Court decided is that the case is not moot. It did not reach the merits of the state law free speech and free exercise claims, let alone opine on the lurking Establishment Clause question.: http://www.txcourts.gov/media/1284936/140453.pdf (One Justice, concurring separately, signaled that she would rule for the cheerleaders on their own constitutional claims, and/or in defense to a hypothetical EC claim: http://www.txcourts.gov/media/1284938/140453c2.pdf) 8. So what's to do on remand? Who knows? One of the Texas Supreme Court judges, concurring, wrote: "My concern is that this case may return to the trial court for a final decision only to reappear on our docket with no clarity as to what this order achieves and what claims are actually live. If that situation arises, the parties and trial court would do well to confront the shadowy place in this litigation and clarify with precision the status of this order and the cheerleaders’ claims." On Sat, Jan 30, 2016 at 12:35 PM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: Following up -- This case was litigated in the state courts. Once the cheerleader religious banners start flying at football games next fall (or basketball games right now), are there any doctrines of preclusion that would stop Freedom from Religion Foundation or others from litigating the Establishment Clause claim, against these public school districts, in the federal courts? In light of Santa Fe School District v. Doe, the claim looks awfully strong to me. Perhaps it would be difficult to find a plaintiff, even a Jane Doe plaintiff, because of fear of reprisals. But the situation seems constitutionally repulsive to me, and it's very sad if fear chases away all the potential plaintiffs. On Sat, Jan 30, 2016 at 12:15 PM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: Steve Jamar is absolutely right, and the Texas Supreme Court is quite wrong. Cheers uttered, and banners carried, by cheerleaders during a public high school football game are school sponsored speech. Does anyone on the list think the First Amendment would bar the school from ordering cheerleaders not to carry a sign that said "Feel the Bern -- beat Austin HS!"? The school is responsible for the content of these banners, and a school sponsored banner that reads "“I can do all things through Christ, who strengthens me,” as one of them did, is a violation of the Establishment Clause. On Sat, Jan 30, 2016 at 11:42 AM, Steven Jamar <stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote: Seems to me there is an establishment problem here. Cheerleaders are sponsored by the school and are displaying religious messages to a captive audience who could choose to forego attending the game or else putting up with the religious banners. Has the free speech approach become so dominant that stopping such displays becomes content-based discrimination and avoiding establishing religion doesn’t meet strict scrutiny as a reason to infringe on such speech? https://www.washingtonpost.com/national/texas-top-court-sides-with-cheerleaders-in-bible-banner-suit/2016/01/29/0939bbce-c6b7-11e5-b933-31c93021392a_story.html -- Prof. Steven D. Jamar Howard University School of Law vox: 202-806-8017<tel:202-806-8017> fax: 202-806-8567<tel:202-806-8567> http://sdjlaw.org Two quotes from Louis Armstrong: "You blows who you is." "If ya ain't got it in ya, ya can't blow it out." _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053<tel:%28202%29994-7053> Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053<tel:%28202%29994-7053> Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
