Christian high school asks appeals court to take up their loudspeaker prayer case in light of Kennedy, and other federal cases of note

by | Aug 19, 2022

Surveying the news over the past week, I see action in a trio of cases working through our federal court system that are worth keeping an eye on from a religious liberty perspective. All three ask courts to apply and interpret relatively recent Supreme Court decisions. Here is a brief rundown of the cases I am watching:

Cambridge Christian School, a private religious high school in Florida, has appealed a District Court decision upholding the state athletic association’s refusal to allow a pre-game prayer to be broadcast over the public address system prior to a state championship game involving two Christian schools. Back in March of this year, the district court granted summary judgment to the athletic association and dismissed the school’s case because the court found the speech at issue was government speech and thus the restrictions do not violate the Free Speech or Free Exercise clauses of the First Amendment. The court cited the Supreme Court’s ruling in Santa Fe v. Doe (2000) in which a school’s practice of broadcasting pre-game prayers over the loudspeaker was held unconstitutional.

Since that time, the Supreme Court issued its decision in Kennedy v. Bremerton, in which the Court sided with a football coach whose practice of praying at the 50-yard line after games was barred by his school district. The Court found the coach’s speech to be protected private speech and not government speech, despite his official duties continuing after the game. Cambridge Christian argues that Kennedy supports their position that their loudspeaker prayer is protected private speech, even though Kennedy involved a coach’s prayer at the 50-yard line and not a prayer broadcast over the public address system. The case is one of the first significant tests of the impact of the Kennedy decision.

Meanwhile, the 9th U.S. Circuit Court of Appeals heard oral arguments in a case brought by the Fellowship of Christian Athletes challenging a California school district’s requirement that club leaders must agree to abide by a policy that bars religious discrimination in determining eligibility for student leadership positions. A district court previously upheld the policy, emphasizing that it applies to all groups equally and does not treat religious groups differently from secular groups. The court cited the Supreme Court’s decision in Martinez (2010). One of the questions before the 9th Circuit in this case is whether Martinez applies in this case. You can watch a recording of the oral arguments here.

Lastly, the state of Colorado filed its brief with the U.S. Supreme Court in 303 Creative LLC v. Elenis, a case brought by web designer Lorie Smith’s company, challenging Colorado’s nondiscrimination law on First Amendment grounds. Among other things, the law requires businesses to serve customers without regard to their sexual orientation. Smith, who designs websites for weddings, refuses on religious grounds to design a wedding site for same-sex couples. The 10th U.S. Circuit Court of Appeals previously upheld Colorado’s law, writing that the nondiscrimination requirement is justified by the state’s compelling interest in “protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.” For its part, the state argues that “The Company is free to decide what design services to offer and whether to communicate its vision of marriage through biblical quotes on its wedding websites. The Act requires only that the Company sell whatever product or service it offers to all regardless of its customers’ protected characteristics.”

If this all sounds familiar, it may be because this same Colorado law has been before the U.S. Supreme Court before. In Masterpiece Cakeshop (2018), the Court ruled in favor of cakemaker Jack Phillips, who was charged with violating the law because he refused to make a custom cake to celebrate a same-sex wedding. The Supreme Court determined the commission adjudicating Phillips’ case had made disparaging remarks about religion and thus could not appropriately consider his religious freedom claim, avoiding the core question of whether refusing to make the cake violates the law. The appeals court in this new case, however, found “no evidence that Colorado will enforce [the law] in a non-neutral fashion.” Oral arguments in the case, which is focused on Free Speech and not Free Exercise issues, are expected take place before the end of this year.

Stay tuned.