In that battle over the use of Bible verses on banners held by cheerleaders for the team to run through at football games and Kountze, Texas, the district court has issued a temporary restraining order preventing the school from prohibiting such banners. The text of the order contains no explanation for that ruling. The suit was filed by the parents of the cheerleaders after the school responded to a letter from the Freedom From Religion Foundation by telling the cheerleaders they can’t use Bible verses on those banners.
Sep 25 2012
Court Issues TRO Allowing Football Bible Banners
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grumpyoldfart
September 25, 2012 at 1:53 pm (UTC -4) Link to this comment
They’ve got a foot in the door. That’s all they need.
umlud
September 25, 2012 at 1:54 pm (UTC -4) Link to this comment
Is it odd that the restraining order is only through October 4 (i.e., Thursday of next week), or is this common/not uncommon practice?
jeremydiamond
September 25, 2012 at 1:56 pm (UTC -4) Link to this comment
A quick internet search confirms that Texas District Court judges are elected, so it’s possible the judge is just incompetent.
Also, was there any request for anonymity for the plaintiffS in this case? Because it clearly has not been granted.
matty1
September 25, 2012 at 1:57 pm (UTC -4) Link to this comment
@2 Maybe a permanent decision will be issued then and it makes no sense to have the two overlap.
eric
September 25, 2012 at 2:06 pm (UTC -4) Link to this comment
From the first link:
That’s terrible reasoning. It doesn’t matter where the banners are made, it matters where they are displayed. I don’t doubt that every single 10-commandments granite monument was made on private property by private citizens – some mason’s shop. That isn’t the issue. Who the frak could think that that is relevant?
Randomfactor
September 25, 2012 at 2:12 pm (UTC -4) Link to this comment
TRO’s are usually issued when the judge thinks they have a good chance of winning.
Randomfactor
September 25, 2012 at 2:21 pm (UTC -4) Link to this comment
Wondering when their homecoming game is–that might also explain the TRO, I guess.
By the way, their team name is the Lions…
Ben P
September 25, 2012 at 2:22 pm (UTC -4) Link to this comment
Usually is the key word here.
There’s all sorts of weird things about this case, first among them being that the suit was filed in the district court of Hardin County Texas.
Nine times out of ten, if you’re going to file a suit alleging freedom of religion issues, you’re going to file it in Federal Court. The other side would have an almost absolute right to remove it to federal court anyway.
The only reason I’d think you’d file in a local state trial court is because you know the judge will grant a TRO regardless of what the other side says.
Based on Wikipedia, Hardin County Texas has a population of about 50,000. I’d wager even money that the only type of temporary restraining order a state trial court judge there hears on any sort of routine basis is a protection order in domestic violence cases. Moreover, I’d mmake the same bet that the number of times a state trial court judge in a rural county sees constitutional issues other than fourth/fifth/sixth amendment issues in criminal cases is virtually nil.
In short, I wouldn’t put much weight on this TRO.
tomh
September 25, 2012 at 2:23 pm (UTC -4) Link to this comment
@ #2
Is it odd that the restraining order is only through October 4 (i.e., Thursday of next week), or is this common/not uncommon practice?
The court scheduled a hearing for Oct. 4 on whether the TRO should be made into a temporary injunction.
Ben P
September 25, 2012 at 2:28 pm (UTC -4) Link to this comment
Also very curious about the case.
1. the order issued by the judge makes absolutely no reference to the bible versus on the banners. The only actual language in the protective order is
2. The last part of the order says
This tells me that the TRO was almost certainly issued without the school district ever providing a response.
While something like that is certainly allowed by the rules and is not, in and of itself, uncommon for a temporary restraining order, I find it very unusual in a case like this. Not only because TRO’s are only really supposed to be issued where one side demonstrates that there is imminent harm such that the petitioner will suffer if the court does not act immidiately, and this really doesn’t qualify. But also, because a TRO would be very rare in a freedom of religion case like this in the first place.
Alverant
September 25, 2012 at 2:29 pm (UTC -4) Link to this comment
Since the judge was elected it means he has to be re-elected by the people. That means he has to make decisions not based on the law but by what’s popular. Making the legally correct decision would mean the death of his career as a judge (and since this IS Texas maybe well his life too).
tomh
September 25, 2012 at 2:30 pm (UTC -4) Link to this comment
Oops. Make that on whether the TRO should be made permanent.
Reginald Selkirk
September 25, 2012 at 2:32 pm (UTC -4) Link to this comment
Which part of “because I said so” do you not understand?
.
I am of course miffed that they did not select Matthew 6:5-6 as one of their verses.
Die Anyway
September 25, 2012 at 2:33 pm (UTC -4) Link to this comment
This all gets so confusing. They (the parents and students) actually *want* football players to tear through bible verses? Isn’t that blasphemy or something? Isn’t God going to be mad at them? (you know, if there were a god)
Randomfactor
September 25, 2012 at 2:50 pm (UTC -4) Link to this comment
It’s like flag desecration. It’s not desecration when Republicans do it.
eric
September 25, 2012 at 2:52 pm (UTC -4) Link to this comment
Ben P:
Sure it does. Since there will be a football game before October 4, if the district isn’t restrained the spectators will not be told that Jesus is on the football team’s side.
Taz
September 25, 2012 at 3:21 pm (UTC -4) Link to this comment
How welcome do you suppose a non-Christian is on that cheer-leading squad?
lofgren
September 25, 2012 at 3:23 pm (UTC -4) Link to this comment
Probably no more welcome than they will be after the ruling.
baal
September 25, 2012 at 4:32 pm (UTC -4) Link to this comment
I’m guessing the judge would argue that he’s protecting the status quo until such time as legal argument gets made. That’s perfectly valid for a judge to do. That said, elected judges have to make the supporters happy (and why I opposed judicial elections) and in this case that’s the xtian side.
Alverant
September 25, 2012 at 4:58 pm (UTC -4) Link to this comment
Best way to stop this is to create a Buddhist or Muslim banner and demand equal treatment reminding them that freedom for one religion means freedom for all religions. There’s a good chance they’ll change their minds. In the words of the LA state representative who retracted her law about state funded vouchers for public schools when a Muslim school applied for funding, “I thought religious meant Christian!”
Ben P
September 25, 2012 at 5:39 pm (UTC -4) Link to this comment
That sounds reasonable, but it’s not really the law.
A temporary restraining order is asking the court to order something with little or no input or notice to the other party. Accordingly there’s a fairly high burden to meet. The party seeking the TRO has to demonstrate that some sort of irreparable harm will occur if the enjoined act goes forwards.
To put it in context, probably the most common TRO’s are protective orders for domestic violence situations. “I’m scared my Ex is going to beat the hell out of me. Ok, you can get a restraining order.”
In the commercial context a TRO is usually to enforce something like a non-disclosure agreement (if the information is released, the purpose of the agreement is gone) or to prevent a sale where the property in question is disputed.
mantistoboggan
September 25, 2012 at 6:20 pm (UTC -4) Link to this comment
Eric:
In light of the Establishment Clause, I don’t think their reasoning is unsound. I’d be interested to hear Ed’s opinion on this.
abb3w
September 25, 2012 at 6:37 pm (UTC -4) Link to this comment
@22, mantistoboggan:
Cf. Santa Fe v Doe, particularly part (a) of the holdings. Factors that are likely a problem:
• on school property
• at school-sponsored event
• by a group representing the student body
• …who are under the supervision of school faculty
• no intent to allow the forum by the student body generally
• majoritarian process guaranteeing minority (EG: atheist/secularist) views will be effectively silenced
• District may have failed to adequately divorce itself from the religious content
There may be some room for defense, and it does help that the banners were not made with school resources; but that alone is grossly insufficient to prevent an establishment claim, particularly one that may be portrayed on religious equal protection grounds.
ArtK
September 25, 2012 at 6:45 pm (UTC -4) Link to this comment
@ mantistoboggan
Given your reasoning, most of the “Ten Commandments” cases would be thrown out since many of the monuments weren’t made with city/county/whatever resources — they were donated. John Freshwater could have put up Jesus posters and had bibles all over his classroom because they weren’t made or bought with school money.
The source of the materials doesn’t matter. What matters is the apparent government endorsement of religion. As abb3w pointed out, if the government privileges religious speech over non-religious speech (do you really think that an atheist banner would be allowed?) or even other-religious speech (“There is no God but Allah, and Mohammed is his Prophet — Go Team!”) is where things go wrong.
mantistoboggan
September 25, 2012 at 7:20 pm (UTC -4) Link to this comment
“John Freshwater could have put up Jesus posters and had bibles all over his classroom because they weren’t made or bought with school money.”
This is a non-sequitur. Freshwater was a public employee.
That said, having read abb3w’s post, it seems the parents have an uphill climb.
Michael Heath
September 25, 2012 at 7:27 pm (UTC -4) Link to this comment
abb33w,
A most excellent post @ 23.
evodevo
September 25, 2012 at 7:46 pm (UTC -4) Link to this comment
You people DO understand this is rural TEXAS, right? Football is equivalent to G-d, and the probability that the judge is a teabag Repub is ~99% (or at least a Repub up for re-election) and the local powers-that-be are clamoring for a fix to the problem. They figure that by the time this gets through the courts football season will be over. Fine legal points of the dispute are lost on a hyper-partisan electorate.
peterh
September 25, 2012 at 8:36 pm (UTC -4) Link to this comment
I keep telling people that Texas is a nice place to be from.
mikeymeitbual
September 25, 2012 at 9:21 pm (UTC -4) Link to this comment
I might be totally wrong in my interpretation of this, but isn’t this akin to students being able to pray in school? If the cheerleaders decided that, as a group, they wanted to put bible verses on these banners, I don’t see how that violates the Establishment clause yet clearly violates their First Amendment rights. Even if it was done as some “Christian Club” activity, I see no problem here.
Am I totally off the rails on this?
lofgren
September 25, 2012 at 11:02 pm (UTC -4) Link to this comment
I see a few problems with this interpretation:
1) The cheerleaders are representing the school. There’s really no other way to view them, wearing uniforms with school colors and emblems, traveling on the school’s dime to other schools, performing school-sanctioned cheers at a school event, all in the name of school spirit. In that situation, I think that the responsibility to remain secular can quite reasonably be passed on to the students in addition to their faculty advisor. While the students are not literally state employees, I see no problem with restricting their right to expression in this way. Consider it a valuable lesson in civics.
2) This makes the cheerleaders a Christian organization, which they ostensibly are not. They are a secular organization performing a secular function for a secular school. Even if the decision to make the banners was 100% unanimous, do you think it likely they’ll change that policy next fall if a non-Christian joins the squad? Would a non-Christian even feel comfortable trying out for the squad? How comfortable does a non-Christian on the squad feel to express her disapproval? If the decision was made by vote or by team captains, that’s just a tyranny of the majority. While students have the right to express themselves openly in most situations (well, should have, anyway), see point #1. Not being a Christian should not be an obstacle to being a cheerleader in a public school, and non-Christians should not be obligated to either suck it up and deal or to fight against tradition and convention in order to make themselves feel comfortable.
3) Everything else the cheerleaders do is approved by a faculty advisor, if not multiple. I highly doubt the students are allowed to compose their own cheers without input from faculty, and I highly doubt they are allowed to use whatever dance moves or acrobatic stunts they choose, regardless of risk or suggestiveness (suggestivity? whatever). The banners certainly have the appearance of being approved by the school for that reason alone.
4) Supposing that you (or the judge, rather) believe that an ostensibly secular school club can take on a religious affiliation, and the students in that club have the right to produce whatever speech they please at school sponsored events, would a non-Christian be welcome to do the same? If a group of Muslims started their own cheerleading squad, would they be treated the same as the Christian cheerleaders? Does every ideology have to go and found its own variant of every club and team now? If you can’t find enough non-Christians to form your own football team, or baseball team, or cheerleader squad, does that mean that you don’t get one unless you suck it up and join a team that explicitly does not represent you? That strikes me as nothing more than institutionalized hegemony.
I had a similar thought as you when I first heard about this, and the school is claiming the same. The simple fact is that the cheerleaders are not contributing one voice to an open forum. They are using a restricted, school-sponsored forum to proselytize a sectarian message.
democommie
September 26, 2012 at 8:02 am (UTC -4) Link to this comment
“2-4-6-8, We’ll kick your ass, ‘cuz GOD is great!
Eeny-meeny-miney-moe; JESUS smite our devilish foe!!
Gooooooooooooooooooooooooooo, Worship Team!!!”
I’m sure that the thousands of competing flavors of Xrianity and who knows how many OTHER fabulous story systems will be pleased to submit THEIR cheers for review.
democommie
September 26, 2012 at 8:06 am (UTC -4) Link to this comment
Here’s a link to a story and photo about the issue:
http://www.athleticbusiness.com/editors/blog/default.aspx?id=962&t=Religious-Banners-Allowed-at-Football-Ga
One must ask why those young KKKristian women are out in public and so scantily clad at that.
The cognitive dissonance, it burns.
eric
September 26, 2012 at 9:39 am (UTC -4) Link to this comment
Lofgren:
Heck, I’d guess that (outside of this court case) the school administration itself probably views the cheerleaders as representatives, and will claim they can exercise control over cheerleader conduct while in uniform. Just imagine if a cheerleader was recorded doing something in her school uniform that the school didn’t like. Do you really think the school is going to say “sorry, we can’t prevent it, our hands are tied by the first amendment?” No, in that case the school would strongly argue that they have a legal right to control the school’s image.
The school can’t say ‘first amendment’ when the cheerleaders hold up giant Jesus signs, then claim ‘exception’ when one of them puts up a U-tube video of them doing beer bongs or simulating sex in uniform. The state exercises control over both, or neither. And we can be pretty damn sure the administration is not going to support the ‘neither’ answer.
eric
September 26, 2012 at 9:46 am (UTC -4) Link to this comment
ArtK:
To be fair to mantis, I think I was a bit unclear in my original post. I was making a point about where the banners are displayed – which I still think is valid. But I did not clearly address the finances side of the statement I quoted.
In terms of finance, I’d say that school financing of such banners would be evidence supporting this being state-sponsored speech. But private financing is not counter-evidence that it isn’t state-sponsored speech. Private financing still leaves the question open, because as Art points out, in many of these establishment cases private donors provide the religious material to schools.
abb3w
September 26, 2012 at 1:26 pm (UTC -4) Link to this comment
@29, mikeymeitbual:
Lofgren nails most of it in his response. Again, though, see Santa Fe v Doe.
It might have some analogies to some of the school prayer cases. Students praying on their own is perfectly allowable. But, in this case, such permitted individual prayer would be the analog of the bible-verse signs/banners brought in the stands by fans, which are perfectly allowable as long as the school doesn’t discriminate by prohibiting on content — banning Koran verses or “probably no god/now play the game” signs. The cheerleader banners are a bit different from this.
This is closer to the lawsuit (in Texas, again) over the Valedictorian prayers, which were eventually settled before a final verdict. There, the school agreed to take the key step of distancing the official administration from the views expressed by the student speakers, such as including a bit of fine print in the graduating program that the student remarks reflect views of the student in question, not the administration. That administration also does not pre-screen the remarks.
Unfortunately, since the cheerleaders appear to be representatives of the school (in uniform, to boot), the sort of distancing that would likely meet constitutional muster for the district to divorce itself from the religious content seems impossible.
Hypothetically, the additional concerns about majoritarian control of the forum might be addressed by allowing each of the varsity cheerleaders to pick the banner message for one of the games each season — the forum access then being gated by neutral criteria, as long as the Cheerleading team does not start discriminating admission on religion (which would make for an even more epic lawsuit). Contrariwise, handing such an unscreened forum to the underdeveloped judgement of teenagers has significant risks of subsequent headlines and facepalming. Nohow, the impossibility of official distancing makes that aspect likely to end up moot.
mikeymeitbual
September 26, 2012 at 2:35 pm (UTC -4) Link to this comment
Ahhhh OK I was a little off the rails. When presented in contrast with the hypothetical “cheerleader in uniform doing non school-approved things” that makes a lot more sense.
I don’t understand what any bible verse would have to do with cheerleader, football, sports, school, or any related topic anyway but I slept through a lot of my LDS seminary classes so my understanding of biblical matters is somewhat hazy and influenced by my dreams. No wonder people give me funny looks when I talk about Shannon Elizabeth’s contributions to the sermon on the mount…