{"id":5194,"date":"2012-11-04T21:43:35","date_gmt":"2012-11-05T02:43:35","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=5194"},"modified":"2012-11-05T15:25:52","modified_gmt":"2012-11-05T20:25:52","slug":"rick-perry-tests-the-limits-of-the-establishment-clause-again","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/rick-perry-tests-the-limits-of-the-establishment-clause-again\/","title":{"rendered":"Rick Perry Tests the Limits of the Establishment Clause (Again)"},"content":{"rendered":"<p>Fresh off his <a href=\"http:\/\/www.washingtonpost.com\/blogs\/the-fix\/post\/rick-perry-spent-more-than-1000-per-vote\/2012\/01\/31\/gIQAA1d9eQ_blog.html\">spectacular failure<\/a> to secure the 2012 Republican presidential primaries, Texas governor Rick Perry has returned to a role more congenial to him \u2013 testing the boundaries of the separation of church and state.<\/p>\n<p>This month, Perry has vocally weighed in on a dispute between a Texas public school district and a group of high school football cheerleaders. The cheerleaders at Kountze High School, near Houston, had displayed large banners and signs at games containing religious messages; the messages made repeated references to God and Christian scriptural citations. Citing Establishment Clause concerns \u2013 especially the precedent of the Supreme Court\u2019s decision in <em>Santa Fe School District v. Doe <\/em>\u2013 school officials ordered the cheerleaders to stop. After fifteen of them sued in federal court, a U.S. District judge<a href=\"http:\/\/www.nytimes.com\/2012\/10\/19\/us\/court-says-texas-cheerleaders-can-use-bible-verses.html?_r=0\"> issued a stay<\/a>\u00a0allowing the cheerleaders to continue to use their signs pending a full hearing in June of next year.<\/p>\n<p>As the controversy developed this month, Governor Perry jumped in with alacrity, demonstrating an approach entirely consistent with his longstanding position on the public role of religion. \u00a0Perry and the Texas attorney general &#8212; speaking in front of a <a href=\"http:\/\/www.nytimes.com\/2012\/10\/18\/us\/governor-perry-backs-cheerleaders-in-fight-over-religious-banners.html\">banner<\/a> proclaiming, \u201cIf God is with us, who can be against us?\u201d\u00a0&#8212; declared that they saw no constitutional problem with the cheerleaders\u2019 banners. In his words, \u201cWe\u2019re \u2026 a culture built upon the concept that the original law is God\u2019s law, outlined in the Ten Commandments. If you think about it, the Kountze cheerleaders simply wanted to call a little attention to their faith and to their Lord.\u201d Perry also called attention to what he viewed as the religious signs\u2019 compliance with a Texas law he championed, the 2007 <a href=\"http:\/\/www.legis.state.tx.us\/tlodocs\/80R\/billtext\/html\/HB03678F.HTM\">Religious Viewpoints Antidiscrimination Act<\/a>\u00a0(RVAA). Both the recent cheerleaders controversy and the underlying legislation itself raise serious constitutional questions, and Governor Perry\u2019s pattern of behavior as Texas\u2019s governor strongly suggests an agenda bent on skirting, if not subverting, constitutional limitations on the separation of church and state.<\/p>\n<p>Governor Perry is no stranger, of course, to accusations of impermissible public endorsement of religion. In the summer of 2011, he lent considerable personal and official support to \u201cThe Response,\u201d a prayer event \u2013 heavily Christian in emphasis \u2013 that was sponsored by the Christian-right American Family Association and took place at a Texas football stadium. The AFA, which <a href=\"http:\/\/www.csmonitor.com\/USA\/Justice\/2011\/0714\/Texas-Gov.-Perry-s-public-day-of-prayer-draws-fire-from-clergy-and-atheists\/(page)\/2\">has been labeled<\/a> a \u201chate group\u201d by the Southern Poverty Law Center, promoted the event by featuring a videotaped \u201cinvitation\u201d contributed by the governor. In the video, Perry asserted that \u201c[a]s a nation, we must come together and call upon Jesus to guide us through unprecedented struggles, and thank Him for the blessings of freedom we so richly enjoy.\u201d\u00a0A legal challenge to Perry\u2019s use of his office to promote a sectarian event was rejected on standing grounds by the Southern District of Texas, and the governor made no apologies for his advocacy. <em>Freedom from Religion Foundation, Inc. v. Perry\u00a0<\/em>(S.D.Tex.,2011).<\/p>\n<p>Several years before \u201cThe Response,\u201d Perry threw his weight behind the RVAA, a 2007 legislative enactment intended to facilitate a greater role for religious discourse in public school events. Consciously framed in response to the Supreme Court\u2019s decision in <em><a href=\"http:\/\/www.law.cornell.edu\/supct\/html\/historics\/USSC_CR_0530_0290_ZS.html\">Santa Fe Independent School District v. Doe<\/a>\u00a0<\/em>(2000)\u00a0and other \u201cequal access\u201d cases like <a href=\"http:\/\/www.law.cornell.edu\/supct\/html\/94-329.ZS.html\"><em>Rosenberger v. University of Virginia <\/em><\/a>(1995), the RVAA had two primary effects: (1) it required schools to set up \u201climited public forums\u201d for non-curricular school functions such as graduation ceremonies, football games, and PA announcements, and (2) it required that student speakers at such forums who chose to include religious expression not be discouraged or prevented from doing so.\u00a0 A model policy accompanying the act purports to guide school districts in promulgating neutral criteria for the selection of speakers, and the RVAA allows schools to police student speakers with regard to non-religious content such as \u201cvulgarity\u201d or non-event-appropriate material.<\/p>\n<p>The State of Texas <a href=\"http:\/\/governor.state.tx.us\/priorities\/families\/stronger_families\/religious_viewpoints_anti_discrimination_act\/\">continues to support<\/a> the RVAA as a vindication of the principle that \u201cfreedom of religion should not be mistaken for freedom from religion,\u201d and it maintains that its policy is in line with Supreme Court precedent and federal Department of Education guidelines on acceptable school prayer.\u00a0 However, the recent controversy with the Kountze High School cheerleaders \u2013 whose actions the governor maintains should have been permitted under the RVAA \u2013 demonstrates the extent to which applications of Texas\u2019s policy can be in friction with the Establishment Clause. Moreover, and whether or not he has violated explicit constitutional norms, Perry\u2019s actions are reflective of a state government which has stepped considerably beyond the bounds of neutrality or even nonsectarian accommodation of religion.<\/p>\n<p>In <em>Santa Fe Independent School District v. Doe, <\/em>the Supreme Court applied its Establishment Clause jurisprudence to invalidate a Texas school district\u2019s policy of holding a yearly election to determine whether an invocation would be given at football games and to elect the student speaker to give such invocations. Relying on the principle it had laid down in <em><a href=\"http:\/\/scholar.google.com\/scholar_case?case=140480915250262562&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr\">Lee v. Weisman<\/a>\u00a0<\/em>(1992), the Court found that, despite the fact that a student prayer-leader at a football game would nominally be speaking for herself, the context inevitably gave rise to the inference that her speech \u2013 and its religious thrust \u2013 would have the imprimatur of the school. \u201cThe realities of the situation plainly reveal that its policy involves both perceived and actual endorsement of religion. In this case, as we found in\u00a0<em>Lee, <\/em>the &#8220;degree of school involvement&#8221; makes it clear that the pre-game prayers bear &#8220;the imprint of the State and thus put school-age children who objected in an untenable position.\u201d Furthermore, the Court found that the majoritarian process the school employed to select a speaker exacerbated, rather than alleviated, the constitutional injury: \u201cSuch a majoritarian policy does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront.\u201d Like the graduation benediction at issue in <em>Lee, <\/em>the Court found that prayers at football games implicitly coerced students with minority religious views into an unacceptable choice between enduring school-endorsed religiosity or forgoing participation in one of the central rituals of high school life.<\/p>\n<p>The Court in <em>Doe <\/em>was also careful to note that the Constitution would not necessarily prohibit public student religious expressions when made in the context of a legitimate \u201climited public forum.\u201d In supporting the Kountze cheerleaders and pushing through the RVAA, Perry and his allies rely primarily on this distinction between a public forum \u2013 in which students who wish to express religious viewpoints <em>must <\/em>be included (see <em>Rosenberger<\/em>) \u2013 and school-sponsored speech. Despite the protestations of the Act\u2019s sponsors, however, the RVAA remains problematic, as exemplified by the recent cheerleaders controversy.<\/p>\n<p>At Kountze High School football games, the cheerleaders\u2019 religious banners stand front-and-center, especially during pre-game festivities; before at least one game, the paper barrier through which the team punched to run onto the field was decorated solely with a scriptural verse. At school sporting events \u2013 especially high school football games in Texas \u2013 cheerleaders represent a school\u2019s colors and its identity in a highly visible role. In such a context, many observers would reasonably conclude that the cheerleaders\u2019 message represented the school itself, and not their private religious beliefs.<\/p>\n<p>In addition to the problem of implicit endorsement, two other concerns mar the RVAA approach under which Perry seeks to justify his support of the cheerleaders in this case. First is the \u201ccaptive audience\u201d problem.\u00a0 The Court found in <em>Doe <\/em>that a high school football game, while not \u201cmandatory,\u201d is important enough for the life of a student to be considered practically so in assessing the burden on her. Though the cheerleaders\u2019 display is likely not as intrusive as is a benediction broadcast over a loudspeaker, it may nonetheless be hard for a viewing student to separate out from the tableau of the game. As Melissa Rogers <a href=\"http:\/\/lawreview.law.ucdavis.edu\/issues\/42\/3\/religious-exercise-expression-association-in-schools\/42-3_Rogers.pdf\">noted<\/a> in the <em>Texas Law Review<\/em><em>, <\/em>at least some circuit precedent supports the notion that captive audience concerns and the appearance of endorsement extend to student religious expressions which are nominally personal, but which use school equipment or ceremonies to reach their audience. <em>See <a href=\"http:\/\/scholar.google.com\/scholar_case?case=4286619466005198784&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr\">Lassonde v. Pleasanton Unified Sch. Dist.<\/a>, <\/em>320 F.3d 979 (9th Cir. 2003).<\/p>\n<p>A second, related problem with the RVAA is whether the \u201cpublic forums\u201d it creates are really public forums at all. With respect to the current controversy, the Kountze school district itself thought that the role of cheerleader does not create a forum for student expression under which the school is obligated to respect religious expression. It was surely right to do so, which makes Perry&#8217;s vocal support for the cheerleaders against the school district here even more remarkable. Even on its face, however, the RVAA preserves too great a role for school authorities, leading to the inference that a school is not merely opening the door for free speech but putting its thumb on the scale.\u00a0 The model policy accompanying the RVAA made clear that schools are authorized to review student expression for its \u201cappropriateness\u201d to the occasion, and to screen out irrelevant or vulgar content. The greater the school role in supervising speech, the more problematic the schools\u2019 specific mandate not to \u201cdiscriminate\u201d against religious speech becomes.<\/p>\n<p>The issue of the legitimacy of the \u201cpublic forums\u201d created under the RVAA raises a larger question \u2013 whether the Act and the governor\u2019s policy moves arise from an impermissible purpose. Although the Supreme Court\u2019s three-part \u201ctest\u201d from <a href=\"http:\/\/www.law.cornell.edu\/supct\/html\/historics\/USSC_CR_0403_0602_ZO.html\"><em>Lemon v. Kurtzman<\/em> <\/a>(1971) has come in for substantial criticism (mostly from the Court\u2019s Right), it still provides broad guidance for Establishment Clause cases; it holds that a government act \u201cmust have a secular legislative purpose\u201d and that its \u201cprincipal or primary effect must be one that neither advances nor inhibits religion.\u201d Much more recently, in <a href=\"http:\/\/www.law.cornell.edu\/supct\/html\/03-1693.ZS.html\"><em>McCreary County v. ACLU<\/em><\/a><em> <\/em>(2005), the Court held that an objective inquiry into the \u201cmanifest purpose\u201d behind a purportedly secular government action (there, a Ten Commandments display couched as a exhibit on law\u2019s history) may give rise to an inference of an Establishment Clause violation. Here, the mission espoused by Texas \u2013 ensuring that students who wish to express themselves religiously do not suffer discrimination \u2013 is valid. However, its history shows that the Act was framed as a direct response to the Court\u2019s decision in <em>Doe <\/em>striking down prayer at football games. Of course, tailoring a statute to skirt the bounds of Supreme Court precedent is a common legislative maneuver, but the history here calls for healthy skepticism of whether the Act\u2019s \u201cpublic forums\u201d are really Trojan horses \u2013 vehicles giving school officials cover to encourage prayer at school events. The majoritarian bias likely built into any process for selection of student speakers also makes it likely that the RVAA will systematically provide a mouthpiece for evangelical Christians \u2013 like the Kountze cheerleaders, the major legislative sponsors of the bill, and of course governor Rick Perry himself.<\/p>\n<p>In striking down the football invocation policy at issue in <em>Doe, <\/em>the Fifth Circuit spoke in terms equally applicable to the present controversy. \u201cDoes the character of the place, the pattern of usual activity, the nature of its essential purpose and the population who take advantage of the general invitation extended make it an appropriate place for communication of views on issues of political and social significance?\u201d <em>Doe v. Santa Fe Sch. Dist.<\/em>, 168 F.3d 806, 820 (5th Cir. 1999). The Fifth Circuit thus proposed a common-sense smell test: a school event cannot be converted into a \u201cpublic forum\u201d by fiat, but must exist in a context in which an exchange of a <em>variety <\/em>of <em>personal <\/em>opinions is natural and appropriate. Texas\u2019s policy fails to distinguish itself from past Texas schemes rejected by courts, and it fails to pass muster under the Establishment Clause precedent of the Fifth Circuit and the Supreme Court. Perry&#8217;s personal conduct is even more out of bounds. In his advocacy of a purportedly neutral piece of legislation in such sectarian terms, he has crossed the line between accommodation of religion and active advocacy &#8212; and it is not the first time the governor has done so.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Texas\u2019s policy fails to distinguish itself from past Texas schemes rejected by courts, and it fails to pass muster under the Establishment Clause precedent of the Fifth Circuit and the Supreme Court. Perry&#8217;s personal conduct is even more out of bounds. In his advocacy of a purportedly neutral piece of legislation in such sectarian terms, he has crossed the line between accommodation of religion and active advocacy &#8212; and it is not the first time the governor has done so.<\/p>\n","protected":false},"author":36,"featured_media":5195,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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