Liberties Reporting on First Amendment freedoms

No penalty for prayer

Religious Liberty | Appeals court overturns decision barring pregame prayer
by Steve West
Posted 11/19/19, 03:37 pm

A federal appeals court last week overturned a 2017 lower court decision that barred two Christian high schools in Florida from using a stadium’s public-address system for a pregame prayer.

A three-judge panel of the 11th U.S. Circuit Court of Appeals ruled that Cambridge Christian School in Tampa should have another chance to argue in court that the Florida High School Athletics Association (FHSAA) violated its First Amendment rights to free speech and the free exercise of religion.

“You’ve got two Christian schools playing each other, both with the same tradition in football, and yet they weren’t allowed to use the state-controlled microphones in order to do this prayer over the loudspeaker,” said First Liberty counsel Jeremy Dys, who represents Cambridge Christian. “These are the same microphones that Billy Graham once used two or three times to hold crusades in that very same stadium.”

In December 2015, Cambridge Christian and Jacksonville’s University Christian School played in the state’s Class 2A championship game, which was supervised and regulated by the FHSAA and held at Camping World Stadium in Orlando. The two schools asked the association for permission to use the stadium’s PA system to say a joint pregame prayer, a longstanding tradition. The FHSAA denied the request, saying it would violate the separation of church and state because the game was taking place at a public facility. The stadium is owned and operated by the city of Orlando and is home to college football’s Citrus Bowl.

“The fact that the facility is a public facility, predominantly paid for with public tax dollars, makes the facility ‘off-limits’ under federal guidelines,” wrote Roger Dearing, who was the executive director of the FHSAA in 2015.

U.S. Circuit Judge Stanley Marcus wrote in the 11th Circuit ruling that the FHSAA allowed prayers at least four times previously, which suggested the association didn’t think prayer conflicted with the purpose of the event. Marcus also found the FHSAA’s policy gave schools considerable leeway when it came to other messages presented to attendees, such as halftime shows. He concluded that a loudspeaker prayer did not necessarily communicate a state endorsement of religion.

“I’m thrilled that we’re still in the game,” said Shawn Minks, Cambridge Christian’s head of school. “Prayer is a core part of who we are as a school, to our students and to our teams. We hope the courts will continue to protect our right to pray over the loudspeaker before kickoff—especially at a game between two Christian schools that share the value of prayer.”

The school had “a longstanding practice and tradition that is unmistakably and closely tied to basic religious beliefs,” Marcus wrote. He said the FHSAA prohibition overly burdened the free exercise of religion.

Dys has defended other schools whose pregame prayers came under attack. The Freedom From Religion Foundation (FFRF) complained about the practice in Valdosta, Ga., and First Liberty sent a letter to the Lowndes County School District advising it could constitutionally permit pregame prayer by adopting a policy that allowed a student to make remarks over a stadium PA system without any restriction on content—whether a fight song, prayer, or some other comment—provided it wasn’t violent or obscene. The school district adopted such a policy in September.

And in Cameron, Mo., last week, the FFRF took aim at a postgame prayer at the 50-yard line led by Cameron High School head coach Jeff Wallace and assistant coach David Stucky. Dys told Fox News that the FFRF’s letter to the school district was “little more than a noisy, public complaint meant to harass and embarrass Americans just trying to live their lives.”

Associated Press/Photo by Rick Egan/The Salt Lake Tribune (file) Associated Press/Photo by Rick Egan/The Salt Lake Tribune (file) Students protest against the Brigham Young University honor code in Provo, Utah.

Diversity and inclusion?

Two professional science societies refused to post job openings at Brigham Young University because of the Mormon-affiliated school’s affirmation of marriage as between one man and one woman.

The American Geophysical Union in Washington, D.C., and the Geological Society of America in Colorado yanked the job ads last month, describing the BYU honor code as “inconsistent” with their ethical standards of diversity and inclusion.

The university in Provo, Utah, requires faculty and students to comply with an honor code that bars all forms of sexual behavior except that between a married man and woman. The school does not regard same-sex attraction as a sin but forbids “all forms of physical intimacy that give expression to homosexual feelings.”

The university has not issued any official comment on the pulled postings. But three BYU science professors—Benjamin W. Abbott, Jani Radebaugh, and Jamie L. Jensen—wrote a letter arguing that the “diversity and inclusion” debate misses a concern for “ideological diversity,” or “a willingness to be challenged and the intellectual humility to admit that the other side may have something to offer.”

“This is about coercion and penalty,” said Shirley Hoogstra, president of the Council for Christian Colleges and Universities, an association of more than 180 Christian institutions. “When a scientific organization edits the potential of other scientists to learn about jobs, they are penalizing by withdrawing access and attempting to coerce by making things tough enough that the institution will come into line with their way of thinking.”

For Hoogstra, this flies in the face of institutional autonomy, something she said is a bedrock value for all higher education: “If diversity and inclusion is a good idea, then it’s not only diversity of people that’s important but diversity of mission. That’s the common ground.” —S.W.

Mauck and Baker Mauck and Baker Wheaton students at Millenium Park in Chicago

Some welcomed help

Wheaton College student evangelists who filed a federal lawsuit after the city of Chicago ejected them from the city’s iconic Millennium Park got a boost from a former Democratic governor and the American Civil Liberties Union.

In early October, a U.S. District Court allowed a group whom the city blocked from the park for seeking signatures on political petitions to join the lawsuit. Former Illinois Gov. Pat Quinn represents that group. Later that month, the ACLU sent a cease-and-desist letter to Mark Kelly, commissioner of Chicago’s Department of Cultural Affairs and Special Events, after he denied activists the right to protest against President Donald Trump in Millennium Park.

Arguments on the students’ motion to bar the city from enforcing the rules are set for Wednesday. Chicago attorney John Mauck, who represents the students, said rules dividing the popular park into 11 imaginary “rooms” and restricting free speech to one small room affect everyone. “This isn’t just about evangelists,” he told the Chicago Tribune. “This is for politicians campaigning, political activists, and whoever else wants free speech.” —S.W.

Wikimedia Commons/Texas Department of Criminal Justice Wikimedia Commons/Texas Department of Criminal Justice The Allan B. Polunsky Unit in West Livingston, Texas, where Patrick Murphy is imprisoned

Death deferred

A federal appeals court last week blocked the state of Texas from executing death-row inmate Patrick Murphy.

A three-judge panel of the 5th U.S. Circuit Court of Appeals in a 2-1 decision upheld a U.S. District Court order finding Texas prison officials violated Murphy’s rights by not allowing his spiritual adviser in the execution chamber.

The prison allowed Christian and Muslim inmates to have prison-employed chaplains present at their deaths. The U.S. Supreme Court stayed Murphy’s execution as discriminatory. Justice Brett Kavanaugh, in a concurring opinion, offered two alternatives to Texas: Bar all religious advisers from the execution chamber or allow all inmates to have them present.

Texas changed its execution procedure five days after the Supreme Court’s order to prohibit the presence of any chaplain or spiritual adviser in the execution chamber. But the 5th Circuit blocked the modified procedure, as well. —S.W.

Steve West

Steve is a graduate of the World Journalism Institute mid-career course.

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