God on the Gridiron
Since 2003, cheerleaders at Lakeview Fort Oglethorpe High School have constructed paper banners for the home team to crash through upon entering the field, albeit painted with biblical verses. In this heavily Protestant town, few even raised an eyebrow until an LFO parent, Donna Jackson, told the Superintendent that the practice was breaking the law and needed to be stopped. Jackson had recently taken a legal course at Liberty University, and regretted the move given that she reads the Bible daily.
Citing First Amendment concerns, the school district relented and halted any future imposition of biblical verses on gameday banners. Was their legal analysis sound?
The First Amendment's religious liberty clauses sometimes come into conflict with one another: one is free to exercise their religious beliefs, yet the state cannot establish its own religion. What happens when individuals, in this case LFO cheerleaders, use a taxpayer funded platform, namely a football game at a public high school, to trumpet their belief in God?
This proverbial play at the joints between the Establishment and Free Exercise clauses surfaced in parallel fashion in 1995 at Sante Fe High School in Texas. At issue was a student-read prayer over the load speaker at home football games. It was initiated through a schoolwide election where a student champlain was elected and his or her right to read a pregame prayer was also endorsed.
Writing for a 6-3 majority in the 1999 case Sante Fe Independent School District v. Doe, Justice John Paul Stevens said that the prayer occurred on government property and was sanctioned by a government-affiliated entity, representing official endorsement of prayer at school-sponsored events. Student speech was anything but private. Then Chief Justice William Rehnquist, in dissent, took note of the disturbing tone of the majority that "bristle[d] with hostility to all things religious in public life."
Is a loadspeaker equivalent to a student-constructed banner? Does the locus of its construction matter? How about the source of the materials used to make it? Each of these questions are critical in order to predict a litigation outcome. Moreover, two members of the majority have since left the Court: David Souter and Sandra Day O'Connor, and their replacements, Sonia Sotomayor and Samuel Alito, respectively, may or may not be more amicable to private expression of religious beliefs through public channels.
Given that LFO High nixed this potential church-state conflict before it was dragged into the courtroom, we are left with an less than satifying outcome. Locals have taken it upon themselves to trumpet the messsages formerly displayed on banners using such diverse channels as the family SUV, student t-shirts, and even an electronic billboard outside a car dealership. These private channels of religious speech are of course permissible, even admirable. However, the question of whether these earnest cheerleaders were also in the right remains unresolved.