1. How did this situation develop?
Like most athletic booster clubs, the Benton Football Booster Club offers to local businesses advertising space in the seasonal football programs, and on small banners displayed in and around the stadium. More recently, they have also sold a prominent space on the field itself, to allow some local business the opportunity to have its logo prominently displayed in each end zone. For the second year in a row, Christ Fit Gym availed itself of that opportunity, paid the necessary fee, and had its logo painted on to the field last Thursday.
Within hours, attorneys at the Americans United for Separation of Church and State “(AU”), who represent anonymous Bossier families as plaintiffs in ongoing, protracted federal court litigation against the Bossier Parish School Board (“BPSB”), were alerted to the logo placement. Because the Christ Fit logo includes a large cross and a Bible verse citation, and is larger and more prominently displayed than other business logos around the stadium, AU attorneys sent an immediate demand letter to the BPSB attorneys insisting the logo in that location is yet another example of “ongoing violations” by Bossier Parish Schools of the Establishment Clause of the First Amendment.
2. What action was taken and why?
The BPSB attorneys felt they had no choice but to act quickly and advise that the Christ Fit logo should be temporarily removed to allow time to consult with the federal court that is presiding over the very contentious and costly lawsuit already being prosecuted by AU against the school district.
Because BPSB is being sued essentially for being “too Christian,” the entire school district is currently under intense scrutiny. BPSB attorneys have been fighting and working very hard for many months in careful negotiations to resolve the case in a way that preserves the greatest amount of religious freedom for all BPSB students and the surrounding community that is possible under federal law.
At this moment, the school district is in a very difficult legal situation that will ultimately decide the extent to which religious freedom can be exercised in Bossier Schools for decades to come. BPSB attorneys feel they must proceed very cautiously, especially because the plaintiffs in the existing federal court litigation have already been able to document for the court many alleged Establishment Clause violations in Bossier Schools that are difficult to defend under the current state of law, and BPSB has had no choice but to frankly acknowledge the plain truth of many of those allegations under oath.
While the Christ Fit Gym logo placement was an innocent business transaction, the AU attorneys are insisting to the federal court that it provides yet another example of Bossier Schools defying federal law. At this delicate stage of the federal court litigation, BPSB must convince the court that the school district remains in good faith.
3. Is the Christ Fit logo on the field legally defensible?
Though some have encouraged Christ Fit Gym to fight and simply demand enforcement of its advertising contract, if the object of that contract is unconstitutional it cannot be enforced. Under normal circumstances, I personally believe a case could be made for the constitutionality of the Christ Fit Gym field logo, and if I were still in practice, I would have taken the case myself. However, the reality is that even if it were an isolated incident in another district that is not currently mired in extensive litigation, the case would have its challenges. To understand why, one must have a basic grasp of the law on point.
While the U.S. Supreme Court has long acknowledged that “we are a religious people whose institutions presuppose a Supreme Being,” and religious liberty is the first freedom listed in the Constitution’s Bill of Rights, the rights to religious expression in public schools has been gradually diminished over the past several decades. Sadly, beginning in the 1960s, activist groups like the ACLU and AU achieved a string of successive court victories eliminating cherished traditions like school-sponsored prayer (1962), the use of the Bible for religious and moral instruction (1963), classroom displays of the Ten Commandments (1980), teaching of creation science (1987), clergy-led graduation prayer (1992), and prayers before high school football games (2000).
In spite of those consequential losses, the U.S. Supreme Court has long affirmed that “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools,” and the Constitution fully protects the free speech and religious expression of students. (For answers to frequently asked questions about the legal rights of students , see my joint publication with Attorney General Jeff Landry, the Louisiana Student Rights Review, at: https://www.ag.state.la.us/Article/6506/5.)
Still, while student-led, student-initiated religious expression in public schools is almost always protected, the courts have determined there is an important distinction between government speech attributed to a school district or its employees and the private speech of students. Unlike private speech, courts have held government speech and activities must be neutral with regard to religion, and—as much as the founders of our country would have disagreed—public schools are now prohibited from “endorsing, sponsoring or advancing” religion or religious messages.
With regard to business logos at a high school football stadium, would a court view the speech as that of the private business owners or the government/school itself? In other words, is the school speaking (through a display) on its own behalf, or merely providing a forum for private speech? In the school context, does it matter if the business speech/logo includes religious content? If so, must a local business logo that includes a Muslim, Buddhist, Hindu or Humanist symbol also be allowed on the field?
While these particular questions have never been specifically answered by our federal appellate court (the Fifth Circuit), at least one other court has. In a Florida case in 2015, the Eleventh Circuit ruled that paid advertising banners on a school football stadium fence are government speech, and thus the First Amendment did not protect the free speech of the advertiser. In 2016, the U.S. Supreme Court denied review of that case and allowed the ruling to stand.
Regardless of that precedent, every individual First Amendment case outcome is heavily fact-dependent. Changes in the specific evidence of a new case can distinguish it from previous rulings and change the final result. Unfortunately for many litigants, the full context and surrounding circumstances are also deemed by the courts to be critically important. That is precisely the current problem in Benton.
As I mentioned above, in another place and time, the Christ Fit Gym case might be one that we could defend on its own merits and have a fair chance of winning. However, in the current situation here, given the totality of these existing circumstances in Bossier Parish, the status of the current litigation against BPSB, and the facts and lengthy evidentiary record of Establishment Clause violations and allegations already presented to the federal court, BPSB is greatly concerned the court will have little appetite to uphold a cross logo prominently displayed on the football field.
At this time, while it may seem ironic or counterintuitive to some, experts believe that fighting to keep the cross logo of this one business on one field in Benton right now could actually backfire and result in not only losing the Christ Fit logo display, but the larger battle to protect all crosses and religious symbols, speech and expression throughout the district for decades to come. In religious liberty litigation, litigants and lawyers have to pick their battles more carefully than perhaps in any other field, because bad precedent has such serious repercussions.
4. What is the risk of proceeding in spite of these realities?
If the resolution of the overall BPSB federal court litigation at this near final stage is further complicated and delayed to determine the legality of this single cross logo, for many reasons, it could actually be counterproductive for the overall cause of religious freedom and the rights of students, teachers and their families.
First, by pushing the court to rule on the cross logo display here—in the midst of all the other damaging facts at issue in the current litigation—BPSB risks the unnecessary creation of a very harmful court precedent that can then be cited, used and built upon by atheist legal organizations to stamp out Christian symbols throughout the entire country. Religious liberty experts would much rather bring this untested question to trial in another jurisdiction under much better facts.
Second, BPSB attorneys believe extending the litigation here now will add a substantial additional amount to the adverse attorneys’ fees that will already be awarded to the Americans United for Separation of Church and State lawyers by the court. A case such as this could easily cost a school district millions of taxpayer dollars if fully extended, and each one of those dollars must be paid directly from the district’s already limited budget. Those dollars are desperately needed right now in Bossier Parish classrooms and to increase teacher pay to attract and maintain Bossier’s exceptional personnel. Moreover, if taxpayer funds are awarded to the plaintiffs’ lawyers instead, they will use them as a war chest to advance their anti-religious agenda in other school districts around the country.
Third, extending the litigation on such additional facts and developments enhances the risk that the federal court will ultimately deem it necessary to appoint a court official known as a “Special Master,” whose job it will be to closely monitor and supervise Bossier Parish schools for many years in the future. Such heavy supervision tends to have a “chilling effect” on the free exercise of religion in schools and their surrounding communities.
5. Are Bossier Parish School officials opposed to Christian symbols?
It is important to remember that no Bossier Parish administrator, board member, principal or coach is in favor of religious censorship. I personally know every school official involved in these matters to be a deeply committed Christian and exceptional public servant. (Remember that they are being accused in federal court of being “too Christian.”) Not a single one of them agrees with the tactics or legal agenda of the plaintiff attorneys. To the contrary, all of them, as individuals, fully and completely support the rights and beliefs of Christ Fit Gym, and I am glad that my good friend, Billy Weatherall, has repeatedly reminded everyone of that fact.
Unfortunately, their individual preferences and personal views on these matters are irrelevant. In their roles as public school officials, they are bound and required to follow the law as currently interpreted and applied by the federal courts. I suspect many of them would like to publicly share their views on all of this, but their status as defendants in the pending litigation prevents them from doing so.
6. Should Christians stand and fight?
Every Christian has a clear obligation to stand for truth (1 Cor. 16:13), to be salt and light in their community (Matt. 5:13-16), and to “earnestly contend for the faith” (Jude 3). Importantly, as we put on the full armor of God (Eph. 6), we must always remember that that the Lord expects us to use His wisdom in how we proceed (e.g., Prov. 1:7, 18:15, 29:11; Lk. 21:15; Eph. 5:15-16; Phil. 1:9-11; Col. 4:5-6).
Jesus taught that because we, His followers, would be sent out “as sheep before the wolves,” we must be “wise as serpents” (avoiding traps that are set for us) and “harmless as doves” (innocent and blameless in our service to the Lord) (Matt. 10:16). As we fight for our principles and our freedom, we have a duty to fully understood and faithfully implement the practical guidance of God’s Word. He expects and instructs us to use wisdom in our strategy.
Every person in this community who has vowed to stand with our friends at Christ fit Gym should be applauded for their resolve. It is right to feel outraged by the sense that our fundamental liberties and our deep religious heritage are being challenged and eroded. They are, and they have been for decades. Indeed, the reasons we lost so many of our freedoms over the last half century is because more Christians were not engaged with us in the fight.
As a result, the moral and religious foundations of our society have been gradually dismantled. In America, and in much of the world, traditional notions of right and wrong are being replaced by relativism and postmodernism. Moral absolutes are now openly opposed and rejected, Judeo-Christian values are often mocked, and depravity is increasingly celebrated. As a result, human life has been devalued, the critical institutions of marriage and family are breaking down, basic civility and decency are being abandoned, the innocent are preyed upon, and our culture is becoming more coarsened and more dangerous. In so many places, self-control, community and charity have been replaced by viciousness, vitriol and violence.
In the face of all this chaos, how should a 21st century follower of Christ respond? Should we retreat to what is left of our shrinking enclaves of faith and just hope for the best—or directly engage the encroaching darkness? I believe we are clearly called to engage—remembering always that to “fight the good fight of the faith” (1 Tim. 6:12) does not mean to seek out needless conflict, but to boldly defend and advance God’s truth, even as we “submit to the governing authorities” (Rom. 13:1-7) and “render unto Caesar what is his” (Mk. 12:17). According to Scripture, those are not mutually exclusive pursuits.
It is precisely because of our faith that Christians fight to ensure religious freedom for all people remains strong and protected. The Christian Founders of our great nation, having personally witnessed the abuses of the Church of England, clearly wanted to avoid the official establishment of any single national denomination or religion. However, they very deliberately listed religious liberty (the free exercise of religion) as the first freedom protected in the Bill of Rights because they wanted everyone to freely live out their faith—as that would ensure a robust presence of moral virtue in the public square and the free marketplace of ideas.
A free society and a healthy republic depend upon religious and moral virtue—not only because they help prevent political corruption and the abuse of power in that republic—but also because those convictions in the minds and hearts of the people make it possible to preserve their essential freedoms, by emphasizing and inspiring individual responsibility, self-sacrifice, the dignity of hard work, the rule of law, civility, patriotism, the value of family and community, and the sanctity of every human life. Without those virtues, “indispensibly supported,” as George Washington said, by religion and morality, every republic will ultimately fail.
These are the things, and this is the faith, we are fighting for.
While the actions and intimidation of the opposition in federal lawsuit, Americans United for Separation of Church and State, have caused confusion and division in our community, all of us have an obligation to restore order to the chaos, stay together, and stand wisely for what we know is right. The people of Bossier Parish have proven time and time again over the years they are firmly resolved to fight tooth and nail for the preservation of religious liberty in our schools and for the presence and influence of moral and religious values in our community. Bossier school officials have been engaged in that battle for decades, and their resolve is as firm as ever.
In this case, I know not what the Bossier Parish School Board members will ultimately decide to do in terms of their legal strategy, but I am praying fervently for their wisdom, discernment and stamina (1 Tim. 2:1-3), as all of us should. I am praying fervently as well for my good brother, Billy Weatherall, and his awesome, groundbreaking ministry at Christ Fit Gym. His intentions are pure, his heart is right, and there are few men I admire more.
As we are reminded in Jude 3, the faith we are defending was entrusted to us. It is the same today as it was yesterday, and it will be tomorrow. It is the same truth that believers have been defending for centuries, and that Americans have given their blood, toil and treasure to preserve. We have done that well in Bossier Parish, and by God’s grace, we always will.