Judge rules for cheerleaders' free speech
Judge implements temporary injunction, sets June 24 trial date
Cheerleaders from a small eastern Texas town have won the first battle in their crusade to display Christian religious messages on banners at their high school's football games.
State District Judge Steve Thomas of Hardin County implemented a temporary injunction Thursday in favor of the Kountze High School cheerleaders, and by setting a trial date of June 24, 2013, Thomas effectively allows the cheerleaders to keep displaying Bible-quoting signs at Kountze athletic events through the end of this current school year.
Macy Matthews, a 15-year-old Kountze sophomore, was eating lunch at cheerleading camp last July when her friend Megan became inspired by images she saw on social media.
"She saw a picture on Pinterest of a team that had made a run-through sign with a scripture on it, and as we were sitting down eating, she showed us and asked if we would be interested in doing that for the football season. So, we all talked about it," Matthews remembered. "We all loved the idea and thought it was really cool and encouraging."
Macy's mother, Coti Matthews, said the girls were excited to use Biblical phrases they considered motivational and uplifting for both the Kountz Lions and their opponents.
"It's their Christian belief, and they liked the idea and thought it was very positive, instead of doing traditional banners that say things like, 'Cage the Eagles,' or 'Bash the Tigers,' she said.
Instead, before the first three home games this season, the football players bolted onto the field through banners bearing New Testament verses such as "I can do all things through Christ who strengthens me." Philippians 4:13; "I press on toward the goal to win the prize for which God has called me in Christ Jesus." Philippians 3:14; and "If God is for us, who can be against us, who can be against us?" Romans 8:31.
Phrases such as those have embroiled the cheerleaders from the small east Texas town of Kountze in a legal controversy: Are the banners, when used at a public school event, a legitimate individual expression of free speech, or do they violate the concept of separation of church and state?
The cheerleaders recently found out via an intercom announcement during the last period of school that they were no longer allowed to use Bible verses on their run-through banners. Macy Matthews said the decision came abruptly, with no explanation. "I was shocked, but I was also very hurt that we couldn't do it anymore, and I didn't understand how we were violating any rights," Matthews told CNN.
Thomas agreed enough to impose the injunction in Matthews v. Kountze Independent School District, ruling that, among other things, the plaintiffs would "suffer a probably imminent and irreparable injury in the interim" without the injunction.
Texas' Attorney General Greg Abbott praised the judge's ruling.
"Today's decision is an important victory for the cheerleaders' freedom of religion. The Constitution has never demanded that students check their religious beliefs at the schoolhouse door. Students' ability to express their religious views adds to the diversity of thought that has made this country so strong," Abbott said. "Texas law supports students' right to freely express their religious beliefs without discrimination. We will not allow groups or individuals to wage a war on religion by trying to intimidate students into embracing a secular mindset."
How this case went to court
The Freedom From Religion Foundation, a national nonprofit organization based in Madison, Wis., that advocates the separation of church and state, ignited the spark that brought the story into the national spotlight. The organization said it received a complaint about the religious nature of the cheerleaders' signs from somebody in the community, but citing privacy concerns, wouldn't reveal any additional details. The foundation then sent a letter to the Kountze Independent School District, claiming that the religious nature of the cheerleaders' signs was illegal.
Based on a precedent set in a 2000 Supreme Court case, Santa Fe Independent School District v. Jane Doe, the Kountze Independent School District's attorneys advised Superintendent Kevin Weldon to immediately ban the religious banners. In that case emanating from southeast Texas, the Supreme Court ruled that it would not allow the broadcast of student-initiated and student-led prayer over the public address system before high school football games.
After the Kountze Independent School District's decision, the cheerleaders and their families filed suit on Sept. 20. Judge Thomas issued a temporary two-week restraining order later that day, allowing the cheerleaders to continue using their "spirit run-through banners," and extended that order another two weeks on October 4.
Thomas Brandt, the lawyer who represents the Kountze ISD and Superintendent Weldon, says this situation is very similar to Santa Fe v. Jane Doe, and in good faith, they asked the court for clarity and interpretation of the law so they can do the right thing.
"The school district is trying to walk a very thin line here, and to obey the law. That's the primary motive, the primary focus of the school district," he said. "On the one hand, we're trying not be endorsing any particular religion. On the other hand, we're not trying to be hostile to religion. We're trying to walk that very thin line of this elusive neutrality that we are required to achieve."
On Wednesday, the state of Texas intervened, filing a petition with the Texas District Court of Hardin County to support the Kountze cheerleaders on the basis of defending the constitutionality of Texas statues.
"We will not allow atheist groups from outside the state of Texas to come into the state to use menacing and misleading and intimidating tactics to try to bully schools to bow down to the altar of secular beliefs," Abbott said Wednesday.
In a statement, the Attorney General's office explained that the Texas Religious Viewpoints Anti-Discrimination Act requires school districts to treat a student's voluntary expression of religious views in the same manner that the district treats a student's expression of any other point of view.
"Those banners, which the cheerleaders independently produce on their own time with privately funded supplies, are perfectly constitutional. The State of Texas intervened in this case to defend the cheerleaders' right to exercise their personal religious beliefs -- and to defend the constitutionality of a state law that protects religious liberties for all Texans," the statement read.
Texas Gov. Rick Perry even Skyped with the cheerleaders last week to show his support.
"As government leaders, we owe it to people of all religions to protect expressions of faith, to ensure everyone has a right to voice their opinions and worship as they see fit," Gov. Perry said.
The Freedom From Religion Foundation said it was "shocked" and "flabbergasted" at the intervention by Attorney General Abbott and Gov. Perry, calling those actions "highly unprofessional." The foundation's lawyer, Randall Kallinen, accused the politicians of pandering to their Republican constituents for votes.
"It's 100% politics. In their party, that is a fact that it's in their platform to be more favorable to the religious right," Kallinen said.
He added that he thinks today's ruling was "purely a political decision," and that if the case was tried in federal court, there would be a very different outcome.
"I doubt the case will even go to trial," Kallinen told CNN. "The people being sued and the judge have to be re-elected, so I don't see how we can get very far."
Interpreting the First Amendment
Kallinen argued that the First Amendment's Establishment Clause prohibits the government from endorsing a particular religion.
"People have freedom of speech. So, individuals have freedom of speech, but also there is the right that the government shall establish no religion. So, the question becomes, 'Is what the cheerleaders are doing private speech, or is it school-sponsored speech?'" Kallinen said. "What the school district is saying is, 'You are in the uniforms that have the name on it. You are in the property of the school. It's a school football game, and you are putting these religious banners onto school property. Therefore, it is school-sponsored speech.' And when it is school-sponsored speech, then it is subject to the Establishment Clause of the First Amendment, and that is that the government should not promote, endorse, or advance a particular religion."
Mike Johnson, who is representing many of the cheerleaders' families as senior counsel for the Liberty Institute -- a nonprofit group which says it is "committed to defending and restoring religious liberty across America" -- disagrees that the banners are school-sponsored, and argues that this is a quintessential example of students' private free speech and expression.
"If you have student-led, student-initiated expression, it is to be regarded as private speech. And because it is private speech, it can't be censored or silenced by the government, short of some reasonable limitations on school kids such as obscenity or a material and substantial disruption to the school day. We don't have any of that here," Johnson said.
Interpretation of the First Amendment's Establishment Clause is something Brandt says can be "a bit confused and confusing."
"Most legal scholars and many judges will admit that the opinions that come out in the Establishment Clause area have been lacking in consistency," Brandt told CNN. "There doesn't seem to have any clear guidance as to individual circumstances."
Kountze locals say town is "united"
A Facebook page started after the school district's decision called "Support Kountze Kids Faith," now has over 48,000 members, far surpassing the reaches of the roughly 2,100 residents of Kountze.
Coti Matthews says the whole town of Kountze supports her daughter and the cheerleaders, and believes they should be able to exercise their freedoms without interference.
"It was student-initiated, student-oriented. The school doesn't pay for any supplies. The school doesn't buy their uniforms. The school does not pay one dollar for anything having to do with cheerleading," she said. "The parents buy the uniforms, the camp clothes, shoes, pom-poms. The school doesn't purchase the paper or the paint or anything to make those banners."
Her daughter Macy looks forward to making religious-themed banners for the rest of her high school career.
"I would like to do this every year," Macy said. "We get into it pretty big."
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