Anyone who’s been to a high school football game and/or watched Friday Night Lights is familiar with those hand-painted cheerleader banners that the players run through before the start of the game, emblazoned with slogans like “Go Team!” and “Lions Rule!” and “But thanks be to God, which gives us victory through our Lord Jesus Christ!”
Wait, what? The right to display religious messages like that last one has been at the center of a hotly disputed court case in Texas for four years—and it seems like the Constitution is losing.
Middle- and high-school cheerleaders in Kountze, a town of about 2,000 people an hour and a half northeast of Houston, regularly displayed banners at school sporting events with scriptural quotations including “I can do all things through Christ, who strengthens me” and “If God is for us, who can be against us?” and “For it is God who is working in you, both to will and to act for his good purpose.”
When the Freedom From Religion Foundation, an organization that advocates for the separation of church and state, heard about this practice back in 2012, it threatened a lawsuit, and the Kountze School District told the cheerleaders to ditch their Bible-beating banners. The cheerleaders’ families quickly responded with their own lawsuit claiming that the ban on religious banners violated their children’s right to free speech.
Even though, the following year, the district decided to allow Scriptures back onto the posters, the families refused to drop the lawsuit, which in 2014 an appeals court subsequently declared moot since it was opposing a policy no longer in effect. The appellate decision didn’t address the core question of the debate, which was whether the Biblical messages represented protected, private speech or a violation of the separation of church and state.
This past Friday, the Supreme Court of Texas unanimously ruled that the lawsuit could move forward after all—not because it believes it’s patently unconstitutional to allow public-school cheerleaders wearing official school uniforms at official school events to carry massive banners proclaiming the supremacy of Jesus Christ, but because there was no guarantee that the district wouldn’t reinstate its ban one day. As Justice John Devine wrote in the opinion:
The District no longer prohibits the cheerleaders from displaying religious signs or messages on banners at school-sponsored events. But that change hardly makes "absolutely clear" that the District will not reverse itself after this litigation is concluded.
The Supreme Court wasn't making a major constitutional decision here; it was simply directing the lower court, which had thrown out the case on a technicality, to rule on whether the banners violated the First Amendment or not.
Texas Gov. Greg Abbott, shockingly enough, sided with the cheerleaders in this fight back when he was attorney general, saying that, “There’s a reality here and that is that the First Amendment does not demand hostility toward religion. … It guarantees freedom of expression that these students were engaging in.” Texas’ current attorney general, Ken Paxton, applauded the court’s 8–0 decision on Friday, saying in a statement that:
Religious liberty, deemed by our nation’s founders as the “First Freedom,” is the foundation upon which our society has been built. I’m pleased the Texas Supreme Court has ensured that the Kountze cheerleaders will be able to continue defending their right to express their faith—the most fundamental of American freedoms.
The separation of church and state has long been an elastic concept in East Texas: On childhood drives from Houston to my grandparents’ house in Paris, Texas, the week before Christmas, my family made an I-spy sport of tallying the courthouse lawns decorated with elaborate nativity scenes. But there were always so many courthouse mangers that we often lost count.
And now, with this week's Supreme Court decision, Texas will remain at the forefront of religious controversies in schools—over evolution, and prayer in school, and now football banners. Time and again, the state forces us to ask where “religious liberty” ends and the right to a secular education begins?