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The Conservative Curmudgeon
November 19, 2012

Does Free Speech End Where Religious Speech Begins?
by Allan C. Brownfeld

ALEXANDRIA, VA — In recent days, we have witnessed an assault on the freedom of students to express religious ideas freely and openly, an assault that would never occur if students’ opinions on any other subject were involved.

In Kountze, Texas, School Superintendent Kevin Waldon, after consulting with lawyers, banned the district’s cheerleaders from putting Bible verses on the banners they hoist at the beginning of football games; his concern was that the signs amounted to school-sanctioned religious expression. A group of the cheerleaders and their parents sued Mr. Waldron and the district. In October, a judge issued a temporary injunction, barring the district from prohibiting the banners for the rest of the football season while the case proceeds to trial.

Governor Rick Perry and Texas Attorney General Greg Abbott have criticized the district’s ban on the signs and registered their dismay. The cheerleaders’ case centers on whether the banners amount to private speech protected by state and federal laws, or whether they are government-sponsored speech that can be regulated and censored. Lawyers for the students argued that the banners were private speech because the cheerleaders created the messages after school without guidance or financial assistance from administrators.

Attorney General Abbott said the district’s action against the students was improper. He argued that the banners were protected by a state law that requires school districts to treat student expression of religious views in the same manner as secular views. That law, signed by Mr. Perry in 2007, is called the Religious Viewpoint Antidiscrimination Act.

“We’re a nation that's built on the concept of free expression of ideas,” Governor Perry said. “We’re also a culture built upon the concept that the original law is God’s law, outlined in the Ten Commandments. If you think about it, the Kountze cheerleaders simply wanted to call a little attention to their faith and to their Lord.”

The superintendent said the lawyers he had consulted advised him to prohibit the signs. The advice was based on a Supreme Court ruling in 2000 in another Texas case, Santa Fe Independent School District v. Doe, stating that prayers led by students at high school football games were unconstitutional. Mr. Abbott’s office said the ruling did not apply in the cheerleaders’ case; the office intervened in the lawsuit, in part, to defend the constitutionality of the 2007 state antidiscrimination law.

When a Texas court issued a temporary injunction allowing the cheerleaders to display their banners for at least the remainder of the season, Jeffrey Mateer, general counsel of Liberty Institute, a national legal organization that seeks to defend and restore religious liberty, and Erin Leu, a constitutional attorney at the Liberty Institute, stated, “Free speech prevailed, reminding us of the well-established principle that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

When the Supreme Court struck down school-sponsored prayer in Santa Fe v. Doe, the court declared, “There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Exercise Clause protects.”

In this case, noted Mateer and Leu, “...both Texas law and the school’s policies affirm that when students speak at school events, including football games, they are engaging in private speech and their views do not reflect the position of the school.... The Kountze cheerleaders alone decide what message to place on their banners. The team is student-run, with school officials present only to monitor safety. Each week two cheerleaders take turns leading the team, including choosing whether to create the banners and, if so, what messages they should bear. The supplies to create the banners are paid for with private funds, as are the cheerleaders’ uniforms, further demonstrating the private nature of their speech.... We better serve our students by educating them about our country’s commitment to free expression rather than shutting out certain views. Otherwise, our schools do a great disservice to students and fail to prepare them to be citizens of our free society.”

In fact, reference to God has been present in our public life from the very beginning. The Declaration of Independence acknowledges God in four separate places. The Framers of that instrument announced that the colonies were assuming “the separate and equal station to which the laws of nature and nature's God entitle them.” The Declaration states: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.” Those who signed the Declaration proclaimed: “And for the support of this Declaration, with the firm reliance in the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.”

The Continental Congress opened its sessions, beginning in 1774, with prayer delivered by a clergyman. In 1776, regular chaplains were authorized and subsequently appointed by Congress. In 1787, Congress provided an annual salary for the chaplains. In 1787, Congress adopted the Northwest Ordinance for the governance of the Northwest Territory. Article 3 proclaimed: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall ever be encouraged.”

The intent of the First Amendment was to make government neutral among religious sects, not neutral between religion and non-religion. Professor Charles Rice, in his book, The Supreme Court and Public Prayer, writes: “... the public life of the American states was based upon the unapologetic conviction that there is a God who exercises benevolent providence over the affairs of man. This is not to say that all Americans then recognized God, or that there was agreement on all the details of his attributes. But to those who assert that the First Amendment was designed to prevent the government from recognizing God and praying His aid, it can rightly be said that they will have to find evidence for their claim elsewhere than in the history of the period prior to 1787.”

It is a dangerous retreat from our belief in both freedom of religion and freedom of speech to treat religious speech in any way differently from other forms of free expression. While we believe in separation of church and state, and are opposed to the government expressing preference for one form of religious expression over another, our society has never agreed to remove reference to God from the public marketplace of ideas.

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The Conservative Curmudgeon is copyright © 2012 by Allan C. Brownfeld and the Fitzgerald Griffin Foundation. All rights reserved. Editors may use this column if this copyright information is included.

Allan C. Brownfeld is the author of five books, the latest of which is The Revolution Lobby (Council for Inter-American Security). He has been a staff aide to a U.S. Vice President, Members of Congress, and the U.S. Senate Internal Subcommittee.

He is associate editor of The Lincoln Reveiw and a contributing editor to such publications as Human Events, The St. Croix Review, and The Washington Report on Middle East Affairs.

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