The U.S. Court of Appeals for the Eleventh Circuit, yesterday, reversed part of an earlier decision that banned two Christian schools from praying over the loudspeaker during a state-sanctioned event. The ruling said there’s merit to the argument that the decision violated the free speech and free exercise rights of the schools, and therefore the lawsuits may proceed.
Here’s the relevant background: The Florida High School Athletic Association (FHSAA) has a simple rule when it comes to reciting Christian prayers over the loudspeakers before football games: Don’t do it. It’s a fair policy considering it echoes what the U.S. Supreme Court said nearly two decades ago.
In December of 2015, two private Christian schools made it all the way to the championship game in the state’s class 2A football playoffs. That’s when Cambridge Christian’s head of school Tim Euler asked state officials if he could say a prayer over the loudspeaker. The other school was okay with this, too. But that didn’t matter to FHSAA’s director:
FHSAA executive director Roger Dearing responded that because the Citrus Bowl is a public facility, the organization could not allow a prayer over the loudspeaker. The state championship game was also televised.
Made perfect sense. This game was overseen and managed by the state, even if Christian schools were involved, and that meant following state law. Both teams were obviously allowed to pray before the game, and after the game, and during halftime, and silently whenever the hell they wanted to. They could even pull a Tebow during the game. And because they were private schools, the coaches could legally join in.
They just couldn’t pray over the loudspeakers.
At the time, lawyers from First Liberty, a Christian legal defense group, threatened to sue:
[Attorney Jeremy] Dys demanded a letter of apology from the FHSAA within 30 days. If that does not happen, he said, he is prepared to fight the issue in federal court.
“Either apologize now or in front of a judge,” Dys said.
There was nothing to apologize for, though. The state didn’t do anything wrong. They didn’t block kids from praying. They merely said a public loudspeaker in a public facility couldn’t be used to broadcast prayer during a state event. (This isn’t hard to understand unless you work for a Christian legal group, and your paycheck requires you to scream “Persecution!!!” three times a day.)
First Liberty ultimately filed a federal lawsuit against the state organization:
The teams both prayed on the field, according to the complaint, but spectators and fans couldn’t hear or participate.
“Thus, by denying access to the loudspeaker,” the suit states, “the FHSAA denied the students, parents and fans in attendance the right to participate in the players’ prayer or to otherwise come together in prayer as one Christian community.”
So… attendees couldn’t pray on their own when the team was doing it? Does God only work if there’s a booming voice in the mix? The FHSAA didn’t stop anybody from praying on their own, at the same time. It was hard to see how this lawsuit could be successful. First Liberty’s argument boiled down to the idea that religious speech, but not any other kind, was prohibited, therefore… discrimination.
“The only reason the FHSAA said no is because it was religious speech,” Dys said. “You cannot banish religious speech to the broom closets. The lesson that the FHSAA is teaching every student athlete is somehow that prayer is wrong. That’s incorrect and it needs to end.“
That was a lot of bullshit in a couple of sentences. The FHSAA wasn’t selectively banning religious speech. The students also couldn’t use the loudspeakers to tell the crowd, “Vote for Donald Trump.” The loudspeakers were to be used for the game, plain and simple. The problem was that the Christians weren’t satisfied with that. They felt prayers only counted if they were done as publicly and loudly as possible. (Just like the Bible says.)
Eventually, atheists got involved. The Freedom From Religion Foundation and the Central Florida Freethought Community filed an amicus brief with the court in 2016, urging the dismissal of the lawsuit.
The speech in question is government speech, not private speech. Thus, the Plaintiff does not have a right to commandeer the public address system at FHSAA championship competitions.
Cambridge Christian fails to cite any authority that establishes that teams that participate in state-run championship competitions have the right to disseminate their own messages over the public address system. Without legal authority or factual support establishing that a forum for private speakers was created by the FHSAA, Cambridge Christian cannot meet its initial burden of establishing that it has a right to speak via the public address system in the first place.
… Under the Establishment Clause, the government may not endorse religion. There is no exception for when most members of the audience would be receptive to the religious message. FHSAA cannot be the mouthpiece of religious organizations or be used to gather event attendees to engage in a communal expression of Christian religious worship.
The judge’s recommendation likewise found that the prayer would be viewed as coming from the government. Sansone wrote that she reached “the inescapable conclusion that the nature of the entirety of the speech, including the proposed prayer, throughout the championship game over the loudspeaker is government speech.”
Cambridge Christian’s free exercise claim was also recommended for dismissal. The report noted that the suit did not include “a single allegation that Cambridge Christian or any of its members were deprived of their right to pray at the championship game. On the contrary, both Cambridge Christian’s team and the opposing team were permitted to pray together at the most centrally focused and public area of the stadium — the 50-yard line.” Sansone wrote that she “remains at a loss as to how the FHSAA’s refusal to permit Cambridge Christian to utilize the FHSAA-controlled loudspeaker to broadcast the teams’ pre-game prayer violated Cambridge Christian’s or its members’ rights under the Free Exercise Clause.“
In June of that year, District Judge Charlene Edwards Honeywell accepted that recommendation and called for the case to be dismissed.
The entirety of the circumstances lead to the conclusion that speech over the loudspeaker at the Stadium during the championship game was government speech. Therefore, the government was not required to open its loudspeaker to allow Cambridge Christian to broadcast its prayer. Its decision not to do so is not subject to the Free Speech Clause. Accordingly, Cambridge Christian cannot state a claim under these constitutional provisions.
… As previously noted, the FHSAA did not prevent or discourage Cambridge Christian or the spectators at the Stadium from praying, or from disseminating that prayer to all in attendance. Moreover, even if denial of access to the loudspeaker did burden a religious belief of Cambridge Christian, such a burden did not amount to a substantial one, but simply inconvenienced the belief, because Cambridge Christian was not denied alternate means of engaging in communal prayer.
First Liberty appealed that decision, which brings us to the ruling made yesterday by a three-judge panel that includes one appointee of Donald Trump. They said that Judge Honeywell “was too quick to pull the trigger” when it came to saying the school’s free speech and free exercise rights weren’t violated. They added:
We cannot say whether these claims will ultimately succeed, but Cambridge Christian has plausibly alleged enough to enter the courtroom and be heard.
So… it’s not a victory. But it’s not a dismissal either. It’ll go back down to the district court for further analysis and it’s entirely possible the Christian school loses once again. But First Liberty is treating it as a resounding victory… which is par for the course for them.
(Image via Shutterstock. Large portions of this article were published earlier. Thanks to Brian for the link)