Schools call on appeals court to end government ban on prayer

Bremerton High School football coach Joe Kennedy praying with team (video screenshot)
Bremerton High School football coach Joe Kennedy praying with team (video screenshot)

A fight over prayer prior to a football game involving two Christian schools has reached the 11th U.S. Circuit Court of Appeals, where the judges have been asked to recognize that religious speech isn’t necessarily sponsored by the government even if it happens on government property.

It is First Liberty Institute that has taken the case involving Cambridge Christian School to the next level.

Lawyers are arguing that multiple recent Supreme Court rulings support the idea of allowing a brief prayer before a game.

In fact, the high court in a case involving a Washington state prep coach who prayed briefly after games on the field determined that was perfectly constitutional.

The appeal asks the court to reverse a decision by the U.S. District Court for the Middle District of Florida that allowed the Florida High School Athletic Association to prohibit two Christian schools from praying over the loudspeaker prior to a state championship game.

“The Constitution protects the best of our traditions, like prayer before a sporting event, from censorship,” said Jeremy Dys, senior counsel for First Liberty Institute. “In the name of the First Amendment, the FHSAA would have us ignore it. Rather than respect the First Amendment’s double protection for religious expression, the lower court would have us silence it. We hope the Eleventh Circuit will correct the lower court’s decision by reminding us all that the Constitution protects religious speech, even when it occurs on government property.”

Jesse Panuccio, a lawyer with Boies Schiller Flexner LLP, which also is working on the case, said, “The Supreme Court has repeatedly held that the state cannot discriminate against religion by feigning concern that accommodation equals endorsement of religion. The FHSAA has forced Cambridge Christian to fight for seven years to vindicate its constitutional rights. On appeal, we believe the school, and the Constitution, will prevail.”

The athletic association in 2015 first banned Cambridge from praying over the loudspeaker at the Citrus Bowl ahead of a state championship football game.

“The FHSAA suggested that because the stadium was city-owned and the FHSAA is a state agency, it would violate the Establishment Clause of the Constitution to allow two private Christian schools to pray over the public address system for less than a minute,” the lawyers explained.

But the new filing charges, “Kennedy. Carson. Shurtleff. Fulton. Espinoza. Masterpiece Cakeshop. Trinity Lutheran. In recent years, the Supreme Court has emphatically reaffirmed that the government may not discriminate against religious practice and speech, and that a ‘government entity’s concerns about phantom constitutional violations’ do not ‘justify actual violations of an individual’s First Amendment rights.’

“Yet the Florida High School Athletic Association (FHSAA), a state actor, continues to defend a policy that impermissibly discriminates against the religious practices and expression of its member schools. Specifically, in 2015, FHSAA reversed its prior position and announced that when two religious schools play in the state championship football game, they are prohibited from using the stadium loudspeaker for pre-game prayer (the ‘Prayer Ban’). FHSAA offered only one reason for this ban: prayer over the loudspeaker could be ‘viewed as [FHSAA] endorsing or sponsoring religion.’

“That rationale is eviscerated by the aforementioned cases, which explain that the Establishment Clause is a complement to, not a restriction on, free exercise,” the filing said.

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