By CHARLES C. HAYNES - Gannett
In Kountze, Texas, there's not much daylight between God and football on Friday nights.
That's why most fans in the stands cheer loudly when the cheerleaders hoist banners with biblical verses for the football team to crash through as they take the field every week.
Most, but not all.
As has been widely reported in the news, someone (wisely choosing to remain anonymous) complained last month to the Freedom From Religion Foundation, which, in turn, complained to Kevin Weldon, the school district superintendent.
Although he sympathizes with the cheerleaders, Weldon followed the advice of attorneys for the district and banned the banners as school endorsement of religion in violation of the First Amendment's establishment clause.
Not to be deterred, some of the cheerleaders and their parents sued Weldon and the district, arguing that the banners aren't school speech, but private student speech protected by the First Amendment's free-speech clause and Texas state law.
Two weeks ago, round one went to the cheerleaders. A Texas state trial judge sided with the students by issuing a temporary injunction allowing them to continue displaying their Bible banners for the rest of the season.
With that decision, the judge turned a small case from a small town into a potentially big case with big implications for how the First Amendment is applied in public schools.
If the cheerleaders ultimately prevail, their victory could open the door for more student religious expression at school-sponsored events, delivered by members of various school groups -- from the cheerleading squad to the student government.
Current law generally permits students to express their religious (or non-religious) views at school events as long as such expression is genuinely student-initiated and not influenced, encouraged or endorsed by school officials.
When they're not representing the school, for example, the Kountze cheerleaders are free as individual students to hold up religious banners in the stands on the same basis as other students are free to hold up banners with other messages.
But they are not free (at least until two weeks ago) to use the cheerleading squad -- a school-sponsored activity that represents the school -- to promote a religious message. That would put the public school in the position of appearing to endorse religion in violation of the First Amendment as interpreted by the U.S. Supreme Court.
It was, in fact, the high court's decision in another Texas football case (Santa Fe Independent School District v. Doe, 2000) that the Kountze superintendent relied on when he decided to ban the banners. In that ruling, a majority of the Court made it clear that school-endorsed religious expression -- even when delivered by a student -- is unconstitutional in public schools.
Christian groups supporting the Bible banners apparently hope that the Supreme Court will take the cheerleaders' case as an opportunity to mitigate, if not repeal, the Santa Fe decision. Since the cheerleaders reportedly made the banners on their own time and dime, they are asking the courts to see the Bible verses as private student speech that carry no school endorsement.
But the problem with allowing school-sponsored groups to promote religion is that it would take us back to the era when public schools imposed one religion (historically Protestant Christianity), denying religious freedom to students of other faiths and no faith.
If Bible-banner advocates in Kountze were suddenly transported to another part of the country -- one of many communities where their faith is in the minority -- would they still favor school-sponsored student groups' promoting one religious scripture (or an anti-religious message)?
Would they be content week after week to see their high school football team run through banners with verses from the Quran, the Vedas or Book of Mormon? Or would they be first in line to demand that the public schools uphold the First Amendment -- and stay out of the religion business?
The genius of the First Amendment (apparently lost on the state judge in this case) is that it protects the right of all students vangelical, Catholic, Muslim, Mormon or any other faith to wave religious banners in the stands on Friday night.
But it keeps the state, including cheerleading squads in public schools, from endorsing one religious message over another.
Charles C. Haynes is senior scholar at the First Amendment Center. His email address is firstname.lastname@example.org.