Amicus Curiae Brief — Cambridge Christian School, Inc., Petitioner v. Florida High School Athletic Association, Inc.

Supreme Court briefJun 17, 2025

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NO. 24-1261

IN THE

Supreme Court of the United States

CAMBRIDGE CHRISTIAN SCHOOLS, INC.,

Petitioner,

FLORIDA HIGH SCHOOL ATHLETIC ASSOCIATION, INC.,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

BRIEF OF LIBERTY, LIFE AND LAW

FOUNDATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

DEBORAH J. DEWART

Counsel of Record

ATTORNEY AT LAW

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ........................... 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT .............................................................. 1

ARGUMENT .............................................................. 2

THE ELEVENTH CIRCUIT SKIRTS THE

PRIMARY ISSUE – WHETHER THE

GOVERNMENT IS SPEAKING ITS OWN

MESSAGE OR MERELY REGULATING

PRIVATE SPEECH ............................................. 2

A. The government speech doctrine must not be

used to mask censorship. .............................. 3

B. The risk of censorship escalates in cases of

religious speech. ............................................ 5

C. The three factors—history, perception, and

control—must not be rigidly applied,

especially in a case where public and private

speech intersect. ............................................ 7

II. AMERICAN HISTORY HAS DEEP RELIGIOUS

ROOTS ................................................................ 8

A. There is a broad history of public prayer in

America. ......................................................... 9

B. The Cambridge pregame prayers are

remarkably similar to Like Santa Fe, the

Eleventh Circuit ruling “bristles with

hostility.”. .................................................... 10

C. Like Santa Fe, the Eleventh Circuit ruling

“bristles with hostility.”. ............................. 11

D. There is no hint of coercion. ........................ 14

III. THE ELEVENTH CIRCUIT IGNORES THIS

COURT’S DECISIONS—AND EVEN ITS OWN

PRECEDENT—CONFIRMING THE DEMISE

OF LEMON AND ITS ENDORSEMENT

OFFSHOOT ....................................................... 15

A. The emphasis on perception – or

endorsement – creates serious threats to free

expression. ................................................... 18

B. The historically inaccurate “wall of

separation” metaphor has created hostility

that inhibits religious expression. .............. 19

C. The “reasonable observer” has increasingly

been replaced by the “offended observer.”. . 21

D. The Eleventh Circuit fails to recognize the

demise of Lemon. ......................................... 23

IV. THE GOVERNMENT HAS ZERO CONTROL

OVER THE CONTENT OF THE PRAYERS .. 24

CONCLUSION ......................................................... 25

iii

TABLE OF AUTHORITIES

Page(s)

Cases

American Legion v. American Humanist Assn.,

588 U.S. 19 (2019).................................... 8, 11, 15

Bd. of Regents of Univ. of Wis. System v. Southworth,

529 U.S. 217 (2000).............................................. 2

Cambridge Christian Sch., Inc. v. Fla. High Sch.

Ath. Ass'n, Inc.,

942 F.3d 1215 (11th Cir. 2019).......................... 19

Cambridge Christian Sch., Inc. v. Fla. High Sch.

Ath. Ass'n, Inc.,

115 F.4th 1266 (11th Cir. 2024) .......... 6, 7, 11-12,

16, 19, 20, 24, 25

Capitol Square Review and Advisory Bd. v. Pinette,

515 U.S. 753 (1995)........................................ 9, 22

Corporation of Presiding Bishop of Church of Jesus

Christ of Latter-day Saints v. Amos,

483 U.S. 327 (1987)............................................ 17

County of Allegheny v. American Civil Liberties

Union,

492 U.S. 573 (1989)...................................... 13, 19

Elk Grove v. Newdow,

542 U.S. 1 (2004).......................................... 13, 22

Engel v. Vitale,

370 U.S. 421 (1962)............................................ 15

Everson v. Board of Ed.,

330 U.S. 1 (1947).......................................... 18, 19

Fulton v. City of Philadelphia,

593 U.S. 522 (2021).............................................. 7

Good News Club v. Milford Central School,

533 U.S. 98 (2001)................................................ 7

Illinois ex rel. McCollum v. Board of Education,

333 U.S. 203 (1948)............................................ 13

Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407 (2022)............... 4, 9, 14-18, 20, 24

Lamb's Chapel v. Center Moriches Union Free Sch.

Dist.,

508 U.S. 384 (1993)...................................... 14, 17

Lee v. Weisman,

505 U.S. 577 (1992)................................ 14, 15, 24

Lemon v. Kurtzman,

403 U.S. 602 (1971)................... 1, 2, 11-19, 21, 23

Lynch v. Donnelly,

465 U.S. 668 (1984)............................................ 13

Marsh v. Chambers,

463 U.S. 783 (1983).......................... 10, 11, 12, 13

Matal v. Tam,

582 U.S. 218 (2017).............................................. 5

Mech v. Sch. Bd. of Palm Beach Cnty.,

806 F.3d 1070 (11th Cir. 2015).......................... 19

Mitchell v. Helms,

530 U.S. 793 (2000)........................................... 17

Pleasant Grove City v. Summum,

555 U.S. 460 (2009)................................. 2-6, 8, 24

Reynolds v. United States,

98 U.S. 145 (1878).............................................. 19

Rojas v. City of Ocala,

40 F.4th 1347 (11th Cir. 2022) .......................... 15

Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819 (1995)............................................ 18

Santa Fe Independent School District v. Doe,

530 U.S. 290 (2000)...... 1, 11-13, 15-17, 20, 23, 24

Shurtleff v. City of Boston,

596 U.S. 243 (2022).................. 2-3, 5-8, 10, 16-17,

19-20, 23-25

Sons of Confederate Veterans, Inc. v. Comm’r of Va.

Dep’t of Motor Vehicles,

305 F.3d 241 (4th Cir. 2002) ............................ 4-5

Thomas v. Anchorage Equal Rts. Comm'n,

165 F.3d 692 (9th Cir. 1999), rev'd en banc,

200 F.3d 1134 (9th Cir. 2000)............................ 23

Town of Greece v. Galloway,

572 U.S. 565 (2014)...............10, 11, 15, 19, 23, 24

Utah Highway Patrol Ass’n v. Am. Atheists, Inc.,

565 U.S. 994 (2011)............................................ 17

Van Orden v. Perry,

545 U.S. 677 (2005)................................ 14, 17, 22

Walker v. Tex. Div., Sons of Confederate Veterans,

Inc.,

576 U.S. 200 (2015)............................ 2, 3, 4, 7, 24

Wallace v. Jaffree,

472 U.S. 38 (1985)....................................... 22, 24

Wooley v. Maynard,

430 U.S. 705 (1977).............................................. 3

Zorach v. Clauson,

343 U.S. 306 (1952)...................................... 13, 14

Other Authorities

Amanda Harmon Cooley, Establishing an End to

Lemon in the Eleventh Circuit,

77 U. Miami L. Rev. 972 (Summer 2023) ......... 15

Patrick M. Garry, The Supreme Court Corrects a

Seventy-Five-Year Distortion in

Establishment Clause Jurisprudence,

56 Ind. L. Rev. 95 (2022) ........................ 18-21, 23

Michael Stokes Paulsen, Lemon Is Dead,

43 Case W. Res. L. Rev. 795 (1993)............. 18, 21

vii

Mark D. Rosen, Establishment, Expressivism,

and Federalism,

78 Chi.-Kent L. Rev. 669 (2003) ........................ 21

Farewell Address (1796), in

35 The Writings of George Washington 229 (J.

Fitzpatrick ed. 1940) .............................................. 8, 9

A Memorial and Remonstrance Against Religious

Assessments, in Selected Writings of James Madison

21 (R. Ketcham ed. 2006) ........................................... 9

Northwest Territory Ordinance, 1 Stat. 52, n. (a) .... 8

Presidential Proclamation, 1 Messages and Papers

of the Presidents, 1789-1897 (J. Richardson ed.

1897)……………………………………………….8, 12, 13

INTEREST OF AMICUS CURIAE 1

Liberty, Life and Law Foundation ("LLLF"), as

amicus curiae, respectfully urges this Court to grant

the Petition for Writ of Certiorari and reverse the

decision of the Eleventh Circuit.

LLLF is a North Carolina nonprofit corporation

established to defend fundamental constitutional

liberties, including religion and speech. LLLF's

founder is the author of Death of a Christian Nation

(2010) and many amicus curiae briefs in this Court.

INTRODUCTION AND

SUMMARY OF THE ARGUMENR

The Florida High School Athletic Association

(“FHSAA”) cites this Court’s opinion in Santa Fe

Independent School District v. Doe, 530 U.S. 290

(2000) to support its position denying Cambridge

Christian School’s request to use the PA system for a

brief pregame prayer. Like Santa Fe, the Eleventh

Circuit ruling “bristles with hostility” to religion.

Santa Fe, 530 U.S. at 318 (Rehnquist, J., dissenting).

That hostility is readily traced to the now defunct

Lemon v. Kurtzman, 403 U.S. 602 (1971), a ruling that

“stalked” this Court’s Establishment Clause

1 Counsel of record for all parties received notice at least 10 days

prior to the due date of amicus curiae's intention to file this brief.

Amicus curiae certifies that no counsel for a party authored this

brief in whole or in part and no person or entity, other than

amicus, its members, or its counsel, has made a monetary

contribution to its preparation or submission.

jurisprudence for five decades. This Court should

grant certiorari to clarify that the Lemon “ghoul” and

its endorsement offshoot are dead and buried, never

to rise again.

The Eleventh Circuit employs the government

speech doctrine to mask censorship of private

religious speech, ignoring the broad history of public

prayer in America since the founding. The three key

factors examined (history, perception, control), used

properly, would reveal that the government is merely

facilitating private speech, not presenting its own

message.

ARGUMENT

THE ELEVENTH CIRCUIT SKIRTS THE

PRIMARY ISSUE – WHETHER THE

GOVERNMENT IS SPEAKING ITS OWN

MESSAGE OR MERELY REGULATING

PRIVATE SPEECH.

As multiple precedents confirm, the government

may adopt policies, endorse views, and "speak" for

itself. Pleasant Grove City v. Summum, 555 U.S. 460,

467-468 (2009); Bd. of Regents of Univ. of Wis. System

v. Southworth, 529 U.S. 217, 229 (2000). When

speaking for itself, the government is “not barred by

the Free Speech Clause” and may determine the

content. Walker v. Tex. Div., Sons of Confederate

Veterans, Inc., 576 U.S. 200, 207 (2015); Summum,

555 U.S. at 467.

In Shurtleff v. City of Boston, three Justices

offered this succinct definition: “[G]overnment speech

occurs if—but only if—a government purposefully

expresses a message of its own through persons

authorized to speak on its behalf, and in doing so, does

not rely on a means that abridges private speech.” 596

U.S. 243, 267 (2022) (Alito, Gorsuch, Thomas, J.J.,

concurring in the judgment). The government may be

subject to the First Amendment if – although literally

“speaking” – it infringes on private expression, “as is

the case with compelled speech.” Id. at 269 (Alito,

Gorsuch, Thomas, J.J., concurring in the judgment);

Walker, 576 U.S. at 219; Wooley v. Maynard, 430 U.S.

705, 715 (1977)).

A. The government speech doctrine must

not be used to mask censorship.

The government speech doctrine is a “rule of

thumb, not a rigid category . . . lest we turn ‘free

speech’ doctrine into a jurisprudence of labels.”

Summum, 555 U.S. at 484 (2009) (Breyer, J.,

concurring). It must be restrained to prevent the

power and machinery of government from being used

to stifle private expression. Courts should be cautious

about importing legal tests developed for a unique

context into other dissimilar settings. Monuments,

license plates, flags, and spoken prayers vary in many

respects. The analysis requires carefully finetuning

distinctions—some of them obvious. A permanent

means of transmission on government property

suggests government speech, because it is “not

common for property owners to open up their property

for the installation of permanent monuments that

convey a message with which they do not wish to be

associated." Shurtleff, 986 F.3d at 89, quoting

Summum, 555 U.S. at 471. “Speakers, no matter how

long-winded, eventually come to the end of their

remarks . . . monuments, however, endure.” Id. at 479.

They monopolize use of the land on which they stand

and interfere permanently with other uses of that

public space. Private speech on public property is

typically transient, e.g., oral communication or

literature distribution. Id. at 464. Spatial limitations

“played a prominent part” in Summum’s analysis.

Walker, 576 U.S. at 228 (Alito, J., dissenting).

Here, the literal speaker is a person—not a

monument, flag, or license plate—speaking on behalf

of a private Christian school, not as a public employee

within the scope of his duties or other government

representative. Even a public employee speaking on

public property is not necessarily engaged in

“government speech” with every word he utters.

When Coach Kennedy prayed on the field, “[h]e was

not seeking to convey a government-created

message.” Kennedy v. Bremerton School Dist., 597

U.S. 507, 529 (2022). The private character of the

speech in Cambridge should be evident, but the

Eleventh Circuit’s “capacious understanding of

government speech takes a large and painful bite out

of the First Amendment.” Walker, 576 U.S. at 222

(Alito, Scalia, Kennedy, J.J., dissenting).

There is a heightened risk of censorship or mixed

messages when private speech occurs in a context

involving the government. Some courts suggest it is

an “oversimplification [to assume] that all speech

must be either that of a private individual or that of

the government and that a speech event cannot be

both private and governmental at the same time.”

Sons of Confederate Veterans, Inc. v. Comm’r of Va.

Dep’t of Motor Vehicles, 305 F.3d 241, 244-45 (4th Cir.

2002). In Summum, the Fraternal Order of the Eagles

was responsible for the message on the Ten

Commandments monument it donated—but the final

compilation “spoke” on behalf of Pleasant Grove City,

which crafted a message about its pioneer history by

selecting monuments based on historical relevance

and the donor’s ties to the community. The display,

comprised of diverse elements, resembled a museum

or library; the City did not parrot the words on the

monuments. The final display was analogous to a

collective whole under copyright law, where the works

of several authors are collected to create a new work.

B. The risk of censorship escalates in cases

of religious speech.

As concurring Justices warned in Shurtleff,

“courts must be very careful when a government

claims that speech by one or more private speakers is

actually government speech.” 596 U.S. at 262 (Alito,

Gorsuch, Thomas, J.J., concurring in the judgment)

(emphasis added). The government speech doctrine

becomes “susceptible to dangerous misuse.” Ibid.,

citing Matal v. Tam, 582 U.S. 218, 235 (2017). That is

precisely what happened here. The Eleventh Circuit

concluded that the prayers of private school

representatives were “actually government speech,”

even though the government neither “purposefully

express[ed] a message of its own” nor spoke “through

persons authorized to speak on its behalf.” Shurtleff,

596 U.S. at 267 (Alito, Gorsuch, Thomas, J.J.,

concurring in the judgment). The result was the

court’s erroneous conclusion that “Cambridge

Christian’s free speech claims necessarily fail.”

Cambridge Christian Sch., Inc. v. Fla. High Sch. Ath.

Ass'n, Inc., 115 F.4th 1266, 1288 (11th Cir. 2024),

citing Shurtleff, 596 U.S. at 251.

When this Court decided Summum, “[t]he

interaction between the ‘government speech doctrine’

and Establishment Clause principles ha[d] not . . .

begun to be worked out.” Summum, 555 U.S. at 486

(Souter, J., concurring). That decision, which hinged

on the distinction between government and private

speech, was litigated "in the shadow" of the

Establishment Clause (id. at 482 (Scalia, J.,

concurring)), “with one eye on [that] Clause” (id. at

486 (Souter, J., concurring)). The Establishment

Clause was not expressly at issue but lurked beneath

the surface and sparked comments from several

concurring Justices. Monuments on government land

are presumably government speech, but in certain

contexts—“[s]ectarian identifications on markers in

Arlington Cemetery come to mind”—a display with

religious symbolism “does not look like government

speech at all” and does not represent the

government's chosen view. Id. at 487 (Souter, J.,

concurring). “And to recognize that is to forgo any

categorical rule at this point.” Ibid. “The city ought

not fear that today's victory has propelled it from the

Free Speech Clause frying pan into the

Establishment Clause fire.” Id. at 482 (Scalia, J.,

concurring). The City’s intent was to visually describe

its history, not to prescribe religious doctrine or to

echo the words engraved on the donated monument.

“Government fails to act neutrally when it

proceeds in a manner intolerant of religious beliefs or

restricts practices because of their religious nature.”

Fulton v. City of Philadelphia, 593 U.S. 522, 533

(2021) (emphasis added). That is exactly what

occurred in Shurtleff: “Boston acknowledge[d] that it

denied Shurtleff ’s request because it believed flying

a religious flag at City Hall could violate the

Establishment Clause.” 596 U.S. at 258. But the

government may not exclude speech based on its

“religious viewpoint” where the government is not

speaking for itself (ibid.)—that would “constitute[]

impermissible viewpoint discrimination.” Good News

Club v. Milford Central School, 533 U.S. 98, 112

(2001). The dispute in Shurtleff arose “only because of

a government official’s mistaken understanding of the

Establishment Clause.” Shurtleff, 596 U.S. at 261

(Kavanaugh, J., concurring) (emphasis added).

Courts should concentrate on genuine threats to

liberty, not fears that someone might erroneously

perceive government endorsement of religion.

C. The three factors—history, perception,

and control—must not be rigidly

applied, especially in a case where

public and private speech intersect.

The Eleventh Circuit relied on three factors to

characterize the pregame prayers: "the history of the

expression at issue; the public's likely perception as to

who (the government or a private person) is speaking;

and the extent to which the government has actively

shaped or controlled the expression." Cambridge,115

F.4th at 1288 (11th Cir. 2024), citing Shurtleff, 596

U.S. at 252; see Walker, 576 U.S. at 209-214. But

“[t]he boundary between government speech and

private expression can blur” when private speakers

participate in a program that involves government, so

it is critical to “determine whether the government

intends to speak for itself or to regulate private

expression.” Shurtleff, 596 U.S. at 252. As three

Justices warned, “treating those factors as a test

obscures the real question in government-speech

cases: whether the government is speaking instead of

regulating private expression.” Id. at 261 (Alito,

Gorsuch, Thomas, J.J., concurring in the judgment).

This warning against rigid application of the factors

is particularly pertinent where religious speech is

involved. Is the government “actually expressing its

own views” or is the “real speaker a private party,”

with the government “surreptitiously engaged in the

‘regulation of private speech’”? Id. at 263 (Alito,

Gorsuch, Thomas, J.J., concurring in the judgment),

citing Summum, 555 U.S. at 467.

II.

AMERICAN

HISTORY

RELIGIOUS ROOTS.

HAS

DEEP

In American Legion v. American Humanist Assn.,

this Court examined “prominent actions taken by the

First Congress” at the founding — President

Washington’s Thanksgiving Proclamation, the

Northwest Territory Ordinance, Washington’s

Farewell Address — and concluded it was customary

to consider historical practice. 588 U.S. 19, 61 (2019).

The Northwest Territory Ordinance provided that

“[r]eligion, morality, and knowledge, being necessary

to good government and the happiness of mankind,

schools and the means of education shall forever be

encouraged.” Id., quoting 1 Stat. 52, n. (a).

Washington’s Farewell Address promoted religion

and morality as “indispensable supports” to “political

prosperity.” Farewell Address (1796), in 35 The

Writings of George Washington 229 (J. Fitzpatrick

ed. 1940). The Constitution and the best of our

traditions counsel mutual respect and tolerance, not

censorship and suppression, for religious and

nonreligious views alike.” Bremerton, 597 U.S. at 514.

A. There is a broad history of public prayer

in America.

Prayer is speech—religious speech. It is no

surprise that “the First Amendment doubly protects

religious speech.” Bremerton, 597 U.S. at 523. That

protection is a “natural outgrowth of the framers’

distrust of government attempts to regulate religion

and suppress dissent.” Id. at 524, citing A Memorial

and Remonstrance Against Religious Assessments, in

Selected Writings of James Madison 21, 25 (R.

Ketcham ed. 2006). “[I]n Anglo-American history, . . .

government suppression of speech has so commonly

been directed precisely at religious speech that a freespeech clause without religion would be Hamlet

without the prince.” Capitol Square Review and

Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995). In

Bremerton, the School District admitted to restricting

Coach Kennedy’s speech because it was religious. 597

U.S. at 523. This cuts directly against historical

practice. So does the Cambridge ruling.

The Eleventh Circuit ignored America’s broad

tradition of public prayer and concluded that the

private schools’ pregame prayer practice is "not a

deeply rooted tradition that rises to the level of a

sincerely held belief." Cambridge, 115 F.4th at 1279.

The court reasoned that because the PA system "has

traditionally communicated messages on behalf of the

government" during the pregame time for football

championship games, the prayers must be

characterized as government speech—outside the

First Amendment’s protection. Id. at 1280, 1289.

Concurring Justices in Shurtleff remind us that

the “real question” is “whether the speech at

issue expresses the government’s own message,” not

“whether a form of expression is usually linked with

the government.” 596 U.S. at 264-265 (Alito, Gorsuch,

Thomas, J.J., concurring in the judgment). The

pregame prayers offered by private school

representatives do not express the government’s own

message. It is absurd to suggest otherwise.

B. The Cambridge pregame prayers are

remarkably

similar

legislative

invocations.

Public prayer “fits within the tradition long

followed

Congress

and

the

state legislatures.” Town of Greece v. Galloway, 572

U.S. 565, 577 (2014). The legal battles surrounding

legislative invocations support the constitutionality of

acknowledging America’s religious roots. In Marsh v.

Chambers, even the dissent "recognized that

government cannot, without adopting a decidedly

anti-religious point of view, be forbidden to recognize

the religious beliefs and practices of the American

people as an aspect of our history and culture." 463

U.S. 783, 810-811 (1983) (Stevens, J., dissenting).

This Court cited legislative prayer as an example of

its shift to a “more modest approach” that “looks to

history for guidance” instead of Lemon’s ambitious

attempt at a “grand unified theory of the

Establishment Clause.” American Legion, 588 U.S. at

60.

This

Court

has

twice

affirmed

the

constitutionality of legislative prayer as a practice

"deeply embedded in the history and tradition of this

country," flowing from "colonial times through the

founding of the Republic and ever since." Marsh v.

Chambers, 463 U.S. at 786. “[T]he First Congress

provided for the appointment of chaplains only days

after approving language for the First Amendment.”

Town of Greece, 572 U.S. at 576. Judiciary committees

in the 1850’s reevaluated and affirmed that the

practice posed “no threat of an establishment.” Id. at

576-577.

The very factors that doomed the pregame

invocations in Santa Fe are present in legislative

prayer cases—and in this case. Legislative

invocations are “authorized by a government policy

and take place on government property at

government-sponsored . . . events.” Santa Fe, 530 U.S.

at 302. Such policies “explicitly and implicitly

encourage[] public prayer.” Id. at 310. There is only

one speaker at a time. Id. at 303, 304. “[T]he only type

of message that is expressly endorsed . . . is an

‘invocation’ – a term that primarily describes an

appeal for divine assistance.” Id. at 306-307. The

choice to implement a prayer policy is “a choice

attributable to the State.” Id. at 311.

Government-private speech. Like Cambridge,

legislative prayer cases raise the critical distinction

between public and private speech. Private citizens

pray in a government context. The government speech

doctrine did not develop until long after Marsh. The

pregame prayers here, much like legislative

invocations, represent a unique blend of both

government and private speech. This confusing blend

could potentially thrust courts into a Catch-22 where

they must either enter forbidden theological territory

or squelch the liberties of citizens who voluntarily

pray in public. Establishment Clause, Free Speech,

and Free Exercise principles are all implicated. If the

prayers are government speech, the government may

become entangled in religion, but if they are private

speech there is a risk of viewpoint discrimination. The

Constitution does not require either alternative.

C. Like Santa Fe, the Eleventh Circuit

ruling “bristles with hostility.”

Santa Fe’s surface similarities to Cambridge

weigh in favor of rejecting it as relevant precedent.

Santa Fe applied “the most rigid version” of Lemon

and “appear[ed] openly hostile toward . . . the policy’s

stated purposes.” 530 U.S. at 319, 322 (Rehnquist, J.,

dissenting). Not only the ruling itself but “the tone of

the Court’s opinion . . . bristles with hostility to all

things religious in public life.” Id. at 318 (Rehnquist,

J., dissenting). That hostility stands in stark contrast

to George Washington’s proclamation of a day of

“public thanksgiving and prayer” . . . “at the request

of the very Congress which passed the Bill of Rights.”

Ibid., citing Presidential Proclamation, 1 Messages

and Papers of the Presidents, 1789-1897, p. 64 (J.

Richardson ed. 1897). Surely Washington’s

Proclamation, early in the nation’s history,

“encourage[d] prayer.” Santa Fe, 530 U.S. at 310.

People who reject religion are entitled to

reasonable accommodation but not complete

protection from exposure to religious expression:

"[S]ome references to religion in public life and

government are the inevitable consequence of our

Nation's origins." Elk Grove v. Newdow, 542 U.S. 1,

35 (2004) (O'Connor, J., concurring). A long line of

unbroken authority in this Court affirms that the

Constitution "mandates accommodation" and "forbids

hostility" toward religion. Lynch v. Donnelly, 465 U.S.

668, 673 (1984); see also Zorach v. Clauson, 343 U.S.

306, 314, 315 (1952); Illinois ex rel. McCollum v.

Board of Education, 333 U.S. 203, 211 (1948).

Anything less would require the “callous indifference”

never intended by the Establishment Clause. Zorach,

343 U.S. at 314; Lynch v. Donnelly, 465 U.S. at 673.

Marsh is a "striking example of the accommodation of

religious belief intended by the Framers," because

America's first congressmen had no constitutional

problem with employing chaplains to offer daily

prayers in the Congress. Lynch v. Donnelly, 465 U.S.

at 674. The government may recognize and

accommodate “the central role religion plays in our

society. . . . Any approach less sensitive to our

heritage would border on latent hostility toward

religion." County of Allegheny v. ACLU, 492 U.S. 573,

657 (1989) (Kennedy, J., concurring).

Lemon poisoned this Court’s Establishment

Clause jurisprudence for decades, sparking demands

for a radical "neutrality" that restricts liberty rather

than preserving it. Several Justices of this Court and

numerous scholars "criticized Lemon and bemoaned

the strange Establishment Clause geometry of

crooked lines and wavering shapes its intermittent

use has produced." Lamb's Chapel v. Center Moriches

Union Free Sch. Dist., 508 U.S. 384, 399 (1993)

(Scalia, J., concurring). Lemon's incoherent test

proved unworkable in practice and has finally been

relegated to the scrap heap of history as a failed 50year experiment. Yet for years Lemon "stalk[ed] our

Establishment Clause jurisprudence" like a “late

night ghoul in a horror movie” as this Court applied,

buried, resurrected, and sometimes ignored it (id. at

398 (Scalia, J., concurring))—before finally

renouncing it.

D. There is no hint of coercion.

This Court has long recognized that compelled

religious exercise is inconsistent with a “historically

sensitive understanding” of the Establishment

Clause. Bremerton, 597 U.S. at 536-537, citing

Zorach, 343 U.S. at 314. In contrast to such

compulsion, the pregame prayers are "rarely noticed,

ignored without effort, conveyed over an impersonal

medium, and directed at no one in particular." Lee v.

Weisman, 505 U.S. 577, 630 (1992). "The coercion that

was a hallmark of historical establishments . . . was

coercion of religious orthodoxy and of financial

support by force of law and threat of penalty." Van

Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J.,

concurring), citing Lee v. Weisman, 505 U.S. at 640

(Scalia, J., dissenting) (emphasis in original). The

pregame prayers do not place "the power, prestige,

and financial support of government behind a

particular religious belief." Engel v. Vitale, 370 U.S.

421, 431 (1962).

Even the soft “coercion” present in Lee v. Weisman

and Santa Fe is absent here. In Santa Fe, this Court

observed that, “while students generally were not

required to attend games, attendance was required

for ‘cheerleaders, members of the band, and, of course,

the team members themselves.’” Bremerton, 597 U.S.

at 541-542, citing Santa Fe, 530 U.S. at 311. But here,

the students involved are private Christian school

students, not public school students.

III. THE ELEVENTH CIRCUIT IGNORES THIS

COURT’S DECISIONS—AND EVEN ITS

OWN PRECEDENT—CONFIRMING THE

DEMISE

LEMON

AND

ITS

ENDORSEMENT OFFSHOOT.

The Eleventh Circuit ignores this Court’s

landmark ruling in Bremerton and even bypasses its

own precedent, less than a month later, confirming

“the final death knell of the Lemon test” in this circuit.

Amanda Harmon Cooley, Establishing an End to

Lemon in the Eleventh Circuit, 77 U. Miami L. Rev.

972, 975 (Summer 2023); Rojas v. City of Ocala, 40

F.4th 1347, 1351 (11th Cir. 2022) (“the Supreme

Court drove a stake through the heart of the ghoul

and told us that the Lemon test is gone, buried for

good, never again to sit up in its grave”). This Court

“long ago abandoned Lemon and its endorsement test

offshoot,” replacing it with an emphasis on historical

practice. Bremerton, 597 U.S. at 534-535; see also

Town of Greece, 572 U.S. at 576-577 (declining an

invitation to use Lemon test); American Legion, 588

U.S. at 84 (describing Lemon as a “misadventure”);

Shurtleff, 596 U.S. at 83 (Gorsuch, Thomas, J.J.,

concurring) (“Recognizing Lemon’s flaws, this Court

has not applied its test for nearly two decades.”).

The Cambridge ruling “bristles with hostility,”

like the Santa Fe case FHSAA cited to support its

denial of the private school’s request for pregame

prayer: “[I]f the FHSAA were to allow prayer over the

PA system, the State could be seen as ‘endors[ing]’ or

‘promot[ing] religion,’ which would violate the

Establishment Clause.” Cambridge, 115 F.4th at

1278, citing Santa Fe, 530 U.S. 301 as “directly on

point.” Similarly in Shurtleff, the City admitted to

denying Shurtleff’s request “because it believed flying

a religious flag at City Hall could violate the

Establishment Clause.” 596 U.S. at 258. In

Bremerton, too, the School District “issued an

ultimatum” against “any overt actions” that might

even appear to endorse the Coach’s prayer (597 U.S.

at 517-518), allowing his prayers only at a “private

location” (id. at 519) and reasoning that his

suspension “was essential to avoid a violation of the

Establishment Clause” (id. at 532). This Court

rejected that paranoid approach to the First

Amendment, but now, similarly, the FHSAA allowed

Cambridge participants to pray before the games only

where “[t]hose prayers were not broadcast over the

PA system and could not be heard by the fans in the

stands.” Cambridge, 115 F.4th at 1278.

It is troubling that a constitutional violation

hinges on “an observer's potentially mistaken belief

that the government has violated the Constitution,

rather than on whether the government has in fact

done so.” Utah Highway Patrol Ass’n v. Am. Atheists,

Inc., 565 U.S. 994, 1004 n. 7 (2011) (Thomas, J.,

dissenting from denial of certiorari). It is "a strange

notion, that a Constitution which itself gives 'religion

in general' preferential treatment . . . forbids

endorsement of religion in general." Lamb's Chapel,

508 U.S. at 400 (Scalia, J., concurring). The focus on

“perception” or “endorsement” easily morphs into the

phantom constitutional violations that arose in Santa

Fe, Shurtleff, and now in this case. These imaginary

concerns do not “justify actual violations of an

individual’s First Amendment rights.” Bremerton,

597 U.S. at 543. Religious expression need not be

shoved into a closet. See Van Orden, 545 U.S. at 699

(Breyer, J., concurring) (the government is not

compelled to purge religion from the public sphere);

Bremerton, 597 U.S. at 535. On the contrary, the

blurry "wall" between church and state should not be

so high and thick that government callously

disregards religion.

The real question in Cambridge is whether the

government itself is speaking, not whether it has

endorsed another speaker’s message. Even under the

defunct and widely criticized Lemon test, “[f]or a law

to have forbidden 'effects' . . . it must be fair to say

that the government itself has advanced religion

through its own activities and influence." Mitchell v.

Helms, 530 U.S. 793, 809 (2000), quoting Corporation

of Presiding Bishop of Church of Jesus Christ of

Latter-day Saints v. Amos, 483 U.S. 327, 337 (1987).

The government speech doctrine is inapplicable

where private speech is “merely subsidized or

otherwise facilitated by the government.” Shurtleff,

596 at 271. When the “government does not speak for

itself,” it may not exclude a “religious perspective.”

Rosenberger v. Rector and Visitors of Univ. of Va., 515

U.S. 819, 832 (1995). Here, FHSAA is merely asked to

accommodate private religious speech, not endorse it.

A. The emphasis on perception – or

endorsement – creates serious threats to

free expression.

A “natural reading” of the First Amendment

suggests that the Speech and Religion Clauses have

complementary, “not warring” purposes. Bremerton,

597 U.S. at 533; see Everson v. Board of Ed., 330 U.S.

1, 13, 15 (1947). Together they guard liberty,

prohibiting state coercion to either prescribe religious

exercise (Establishment Clause) or to proscribe it

(Free Exercise Clause). Patrick M. Garry, The

Supreme Court Corrects a Seventy-Five-Year

Distortion in Establishment Clause Jurisprudence, 56

Ind. L. Rev. 95, 114-115 (2022); Michael Stokes

Paulsen, Lemon Is Dead, 43 Case W. Res. L. Rev. 795,

798 (1993). Courts should consider whether liberty is

truly threatened by a challenged practice, “rather

than relying on tests that only tangentially tr[y] to

reflect the intended purpose of the Establishment

Clause.” Garry, Seventy-Five-Year Distortion, 56 Ind.

L. Rev. at 100. Public prayers by private speakers do

not threaten the liberty of others. Objectors are free

to disregard them but have no iron-clad right to be

free of such brief exposure to religious expression.

Ignoring recent developments in this Court, the

Eleventh Circuit asks whether “observers reasonably

believe the government has endorsed the message."

Cambridge, 115 F.4th at 1290, quoting Cambridge

Christian Sch., Inc. v. Fla. High Sch. Athletic Ass'n,

942 F.3d 1215, 1232-33 (11th Cir. 2019) (quoting

Mech v. Sch. Bd. of Palm Beach Cnty., 806 F.3d 1070,

1076 (11th Cir. 2015)) (emphasis added). But three

current Justices of this Court have warned against

this focus on public perception, because it “encourages

courts to categorize private expression as government

speech in circumstances in which the public is liable

to misattribute that speech to the government,” thus

“allow[ing]

governments

exploit

public

expectations to mask censorship.” Shurtleff, 596 at

265-266 (Alito, Gorsuch, Thomas, J.J., concurring in

the judgment). Only a few years after Lemon, “[f]our

dissenting Justices” of this Court “disputed that

endorsement could be the proper test” because it

condemns many time-honored practices that date

back to the founding. Town of Greece, 572 U.S. at 579580, citing Allegheny, 492 U.S. at 670-671 (Kennedy,

J., concurring in the judgment in part and dissenting

in part).

B. The historically inaccurate “wall of

separation” metaphor has created

hostility

that

inhibits

religious

expression.

This Court took a “jurisprudential wrong turn” in

1947 when it suggested that “the Establishment

Clause was meant to create a wall of separation.”

Garry, Seventy-Five-Year Distortion, 56 Ind. L. Rev.

at 100; Everson, 330 U.S. at 16. The original reference

was about a wall of protection for the church; see

Reynolds v. United States, 98 U.S. 145, 164 (1878).

But the metaphor has been repeatedly employed to

breed hostility to religion, “misstat[ing] the Framers’

intentions” and “directly contradict[ing] the American

historical experience.” Garry, Seventy-Five-Year

Distortion, 56 Ind. L. Rev. at 100.

Misunderstanding persists, as demonstrated by

Santa Fe and Shurtleff. School officials in Santa Fe

denied students the right to voluntarily pray, fearing

the perception of government approval. 530 U.S. at

308-309. Boston officials in Shurtleff were convinced

the Constitution prohibited them from allowing

private parties to “fly a religious flag on public

property.” 596 U.S. at 273-274. A nearly identical

error occurred here—FHSAA believed federal law

precluded prayer at a public facility. Cambridge, 115

F.4th at 1278.

These

recurring

misunderstandings

are

unnecessary now that Bremerton has demonstrated

how much “our Establishment Clause jurisprudence

ha[s] gone off the rails.” 597 U.S. at 540. The School

District asserted that it not only “may prohibit” its

employees’ private prayers “but that it must do so in

order to conform to the Constitution.” Ibid. Officials

contended they had a “duty to ferret out and suppress

religious observances.” Id. at 543-544. But this Court

found “no historically sound understanding” of the

Establishment Clause that would require that hostile

approach. Id. at 541. On the contrary, “[t]he

Constitution neither mandates nor tolerates that

kind of discrimination.” Id. at 544.

C. The

“reasonable

observer”

increasingly been replaced by

“offended observer.”

has

the

Lemon created a monster, leading to use of the

Establishment Clause as a “reverse Free Exercise

Clause” to protect offended observers from exposure.

Garry, Seventy-Five-Year Distortion, 56 Ind. L. Rev.

at 118. Some courts “adopted a separationist view

interpreting the Establishment Clause as confining

religion to the private realm.” Id. at 102. The frequent

result was an approach that “required functional

hostility . . . to religion by treating the promotion of

religious freedom as distinguished from the

promotion of religion as an improper government

motivation." Id. at 99 n. 40, quoting Paulsen, Lemon

Is Dead, 43 Case W. Res. L. Rev. at 801. It was

decades before this Court finally recognized and

reversed “this chaotic legacy of Lemon, as well as the

hostility to religion it had produced.” Garry, SeventyFive-Year Distortion, 56 Ind. L. Rev. at 110. The

endorsement test had become a “dissenter’s veto,

allowing anyone offended by or opposed to religious

expressions to censor them.” Ibid. Instead of guarding

religious freedom, courts began to “shield a secular

society, as well as opponents of religion.” Id. at 107;

see id. at 107 n. 113, Mark D. Rosen, Establishment,

Expressivism, and Federalism, 78 Chi.-Kent L. Rev.

669, 675-76 (2003).

Religious expression need not be excised from

public life. Lemon’s highly subjective endorsement

test spawned lawsuits over trivial offenses, based on

an imaginary "reasonable" observer’s disapproval.

That observer is not—or at least should not be—"any

person who could find an endorsement of religion” or

“some reasonable person” who might be offended or

“might think the State endorses religion.” Pinette, 515

U.S. at 780 (O'Connor, J., concurring) (internal

quotation marks omitted). The consequences can be

devastating if the test allows a "hecker's veto" to rule

the outcome. Elk Grove v. Newdow, 542 U.S. at 35

(O'Connor, J., concurring), citing Pinette, 515 U.S. at

780 ("There is always someone who, with a particular

quantum of knowledge, reasonably might perceive a

particular action as an endorsement of religion.").

“[T]he First Amendment embraces the right to

select any religious faith—or none at all.” Wallace v.

Jaffree, 472 U.S. 38, 52-53 (1985). Yet too many cases

have granted legal standing to “offended observers,”

resulting in judgments based on the imaginations of

a nebulous “reasonable observer.” This malleable

imaginary person is easily manipulated to reach

desired results. The combination of “offended” and

“reasonable” observers is lethal, leading to blatant

hostility to all things religious in the public square—

a result never contemplated by the Constitution’s

Framers. This chaotic jurisprudence jeopardizes

liberty. In some cases, courts dare to presume

unconstitutionality based on what a poorly defined

observer might mistakenly think. That approach

should be jettisoned and replaced with a return to

coercion as “the touchstone” of the inquiry. Van

Orden, 545 U.S. at 697 (Thomas, J., concurring). The

offended observer’s “injury” is far removed from the

coercion that characterized historical establishments.

Offense is not tantamount to coercion.

D. The Eleventh Circuit fails to recognize

the demise of Lemon.

The uncertainty generated by Lemon “led one

court to label the Establishment Clause caselaw as

suffering

‘from

sort

jurisprudential

schizophrenia.’" Garry Seventy-Five-Year Distortion,

56 Ind. L. Rev. at 97 n. 14, citing Thomas v. Anchorage

Equal Rts. Comm'n, 165 F.3d 692, 717 (9th Cir. 1999),

rev'd en banc, 200 F.3d 1134 (9th Cir. 2000). In

Shurtleff, “at least some of the blame trace[d] back” to

Lemon’s attempt “to devise a one-size-fits-all test”

that “bypassed any inquiry into the Clause’s original

meaning.” 596 U.S. at 276-277 (Gorsuch, Thomas,

J.J., concurring in the judgment). Boston “chose to

follow Lemon anyway.” Ibid. FHSAA made the same

mistaken choice by relying on Santa Fe, which in turn

replicates Lemon.

Lemon created “a chaotic and unpredictable

patchwork of constitutional tests,” a “patchwork”

resulting in “a confused muddle of contradictory

mandates.” Garry, Seventy-Five-Year Distortion, 56

Ind. L. Rev. at 95. “The more tests that evolved, the

more confusion that reigned”—allowing prayer at

legislative meetings (Town of Greece) but not before

school football games (Santa Fe). Id. at 99.

Establishment is a word that by its “very

definition . . . requires more than a transitory or

isolated association between a government entity and

an individual religious practice or expression.” Garry,

Seventy-Five-Year Distortion, 56 Ind. L. Rev. at 113.

This case implicates only a transitory association. The

misunderstanding that stems from the wall metaphor

has led to a "mischievous diversion of judges from the

actual intentions of the drafters of the Bill of Rights."

Id. at 100 n. 52, quoting Wallace v. Jaffree, 472 U.S.

at 107 (Rehnquist, J., dissenting).

IV. THE GOVERNMENT HAS ZERO CONTROL

OVER THE CONTENT OF THE PRAYERS.

The Eleventh Circuit asked the right question but

got the wrong answer. The “central question” is

"whether the government is speaking instead of

regulating private expression." Cambridge, 115 F.4th

at 1289-1290; Shurtleff, 596 U.S. at 262 (Alito, J.,

concurring). But as in Town of Greece and Shurtleff,

the government has zero control over the message. In

contrast to Walker, the government does not

“maintain[] direct control over the message[]

conveyed” or approve every prayer before it may be

spoken. See Walker, 576 U.S. at 213; Shurtleff, 596

U.S. at 257. Unlike Summum, the government is not

using privately designed or funded content to craft

and convey its own message. FHSAA did not, and

indeed should not, "exercise[] final approval

authority" over the prayers. See Summum, 555 U.S.

at 470-472. A brief spoken prayer is not comparable

to a permanent monument woven into a governmentdesigned display. The speaker is a Christian school

representative who creates the content, not a

government agent speaking in his official capacity

“seeking to convey a government-created message . . .

pursuant to a government policy.” Bremerton, 597

U.S. at 529. The private school, not the government,

is responsible for the message. In contrast to Lee v.

Weisman, 505 U.S. at 588, the content is not “directed

and controlled” by a public school official. Santa Fe,

530 U.S. at 324 (Rehnquist, J., dissenting). “[A]ny

speech that may occur . . . here would be private, not

government, speech.” Id. at 321 (Rehnquist, J.,

dissenting) (emphasis in original).

“[S]peech by a private individual or group

cannot constitute government speech if the

government does not attempt to control the message.”

Shurtleff, 596 U.S. at 263-264 (Alito, Gorsuch,

Thomas, J.J., concurring in the judgment).

Government control over the “content and meaning”

is the “key” to whether the government “meant to

convey the messages.” Cambridge, 115 F.4th at 1293,

quoting Shurtleff, 596 U.S. at 256. But just as in

Shurtleff, the extent of government control over the

message—the prayers—was “not at all” except for the

“event’s date and time” and “control over the . . .

physical premises.” Shurtleff, 596 U.S. at 256.

CONCLUSION

This Court should grant the Petition and reverse

the Eleventh Circuit ruling.

Respectfully submitted,