Football and prayer are back at the Supreme Court

OPINION:

Where does private speech end and government speech begin? The Supreme Court has a chance to clarify that issue if it takes a case involving high school football, prayer and a sound system.

Ten years ago, two Christian high school football teams met at the Citrus Bowl to compete for the state championship of the Florida High School Athletic Association (FHSAA) 2A division. Each school had a long tradition of praying before kickoff. In keeping with that tradition, a representative from Cambridge Christian School asked to use the loudspeaker to begin the game with prayer but was denied by the FHSAA, which claimed it would be “viewed as endorsing or sponsoring religion,” violating the establishment clause of the Constitution.

Cambridge Christian sued.

During the litigation, the FHSAA moved the goalpost and shifted its argument away from the establishment clause, claiming instead that the prayer was government speech as interpreted by an old Supreme Court case, Santa Fe Independent School District v. Doe, because the prayer would have been delivered using a government-owned sound system.

The U.S. District Court for the Middle District of Florida agreed and prohibited the prayer. On appeal, the three-judge panel and later the full panel of the 11th U.S. Circuit Court of Appeals upheld the lower court’s decision. Cambridge has now asked the Supreme Court to reverse that decision.

This should have been a straightforward First Amendment case. As clarified in Kennedy v. Bremerton School District, the government may not “ferret out and suppress religious observances even as it allows comparable secular speech.” That is exactly what happened here. The FHSAA permitted private speech over its loudspeaker but impermissibly censored private religious speech solely because it was religious. To mask that hostile discrimination, the FHSAA resorted to a made-for-litigation government speech defense, a “dangerous misuse” of the doctrine.

The 11th Circuit’s decision to label the prayer as government speech abandons the foundational promises of the First Amendment that are meant to guarantee individual freedom. In Shurtleff v. Boston, Justice Samuel A. Alito Jr. wrote in a concurring opinion, “To prevent the government-speech doctrine from being used as a cover for censorship, courts must focus on the identity of the speaker. … A government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech.”

No reasonable person would watch two Christian schools pray and interpret it as a government endorsement of religion simply because a government-owned microphone was used to amplify the prayer.

At various FHSAA-organized, postseason events, private schools and sponsors were allowed to use the loudspeakers throughout the events to deliver unscripted messages without preapproval. Halftime announcements, sponsorship promotions — and, before the 2012 championship game, even prayer — were all allowed and considered private speech, so why did they single out Cambridge Christian School’s prayer, suddenly labeling it government speech?

In a concurring opinion in Shurtleff, Justice Brett M. Kavanaugh wrote, “Under the Constitution, a government may not treat religious persons, religious organizations or religious speech as second-class.”

To the extent Santa Fe can be read to support the decision of the 11th Circuit, the Supreme Court should overrule it as out of step with its more recent government speech precedent. Otherwise, state actors have been gifted a special veto for a private party’s religious speech on any government-owned platform.

Here, the prayer requested cannot be government speech because the only view to be expressed would have come from Cambridge, not the FHSAA. In the name of protecting religious liberty, the FHSAA would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity.

The Constitution protects the best of our traditions, such as prayer before a sporting event, from censorship. It shouldn’t matter whether the prayer is offered over a loudspeaker.

• Jeremy Dys is senior counsel for First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. Learn more at FirstLiberty.org.