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

No. 24-1261

In the

Supreme Court of the United States

CAMBRIDGE CHRISTIAN SCHOOL, INC.,

Petitioner,

v.

FLORIDA HIGH SCHOOL

ATHLETIC ASSOCIATION, INC.,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Eleventh Circuit

BRIEF OF THE RELIGIOUS FREEDOM

INSTITUTE AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Brian T. Goldman

Counsel of Record

Holwell Shuster

& Goldberg LLP

425 Lexington Avenue

New York, NY 10017

(646) 837-5151

bgoldman@hsgllp.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

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

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 3

I.

The Decision Below Relies

On A Fundamentally Wrong

Understanding Of The Establishment Clause ... 3

II. The Court Should Overrule Santa Fe ................. 6

CONCLUSION ......................................................... 10

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Am. Legion v. Am. Humanist Ass’n,

588 U.S. 29 (2019) ....................................................7

Bd. of Educ. of Westside Comty. Schs. v. Mergens,

496 U.S. 226 (1990) ............................................ 6, 10

Engel v. Vitale,

370 U.S. 421 (1962) ..................................................4

Harris v. Zion,

927 F.2d 1401 (7th Cir. 1991)..................................7

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .......................................... 2, 7, 8

Lamb’s Chapel v. Ctr. Moriches Free Sch. Dist.,

508 U.S. 384 (1993) ..............................................5, 7

Lee v. Weisman,

505 U.S. 577 (1992) .......................................... 2, 4, 9

Lynch v. Donnelly,

465 U.S. 668 (1984) ..................................................4

New York Tr. Co. v. Eisner,

256 U.S. 345 (1921) ..................................................3

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000)................................ 2, 3, 5, 8, 10

Shurtleff v. City of Boston,

596 U.S. 243 (2022)..................................................6

Town of Greece v. Galloway,

572 U.S. 565 (2014)..................................................7

iii

Van Orden v. Perry,

545 U.S. 677 (2005)..................................................6

Wallace v. Jaffree,

472 U.S. 38 (1985)....................................................3

Zorach v. Clauson,

343 U.S. 306 (1952)..................................................7

Other Authorities

Inaugural Addresses of the Presidents of the United

States,

S.Doc. 101–10 (1989) ...............................................4

Thomas M. Cooley,

A Treatise on the Constitutional Limitations Which

Rest upon the Legislative Power of the States of the

American Union 470 (Boston, Little Brown & Co.

2d ed. 1871) (1868) ...................................................3

Rules

Sup. Ct. R. 37.2 ............................................................1

Statutes

36 U.S.C. § 119 ............................................................5

1

INTEREST OF AMICUS CURIAE 1

The Religious Freedom Institute (RFI) is committed to achieving broad acceptance of religious liberty

as a fundamental human right, a source of individual

and social flourishing, the cornerstone of a successful

society, and a driver of national and international security. Among its core activities, RFI equips students,

parents, policymakers, professionals, faith-based organization members, scholars, and religious leaders

through programs and resources that communicate

the true meaning and value of religious freedom, and

apply that understanding to contemporary challenges

and opportunities.

RFI envisions a world that respects religion as an

indispensable societal good and which promises religious believers the freedom to live out their beliefs

fully and openly. RFI submits this brief because this

Petition raises fundamental questions about the

rights of private high schools, through their representatives, to practice their faith openly, including by

engaging in religious prayer over a loudspeaker before

football games.

1 Pursuant to Sup. Ct. R. 37.2, counsel of record for all parties

received timely notice of this filing. Amicus certifies that no party

or party’s counsel authored this brief in whole or in part and that

no party or party’s counsel made a monetary contribution intended to fund the preparation or submission of this brief. No

person other than amicus or their counsel made a monetary contribution to its preparation or submission.

2

SUMMARY OF THE ARGUMENT

The decision below—prohibiting a private religious school from delivering loudspeaker prayer before a state championship football game—rests on untenable premises. First, it presupposes that the Government must be scrupulously neutral towards religion, lest the Government be accused of violating the

Establishment Clause by supposedly “endorsing” a religion. That is fundamentally wrong. Rather, “[t]he

history and tradition of our Nation are replete with

public ceremonies featuring prayers of thanksgiving

and petition.” Lee v. Weisman, 505 U.S. 577, 633

(1992) (Scalia, J., dissenting). Second, it applied an

endorsement test that this Court repudiated in Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022). To

the extent the Eleventh Circuit’s decision was compelled by Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290 (2000), that case should be overruled, and this

case presents the perfect vehicle to do so.

The decision below is not just fundamentally mistaken. It is fundamentally mistaken on an issue of

critical importance. The decision below threatens to

restrict the constitutionally-protected, private religious speech of schools of all faiths, including not just

Christian schools (such as Petitioner here), but Muslim schools, Jewish schools, and private schools

steeped in other faiths. Any outward manifestation of

religiosity by any such school at a public or even public-adjacent function would arguably violate the Establishment Clause. That conclusion turns this country’s history and tradition upside down.

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ARGUMENT

I. The Decision Below Relies

On A Fundamentally Wrong

Understanding Of The Establishment Clause

A. “[A] page of history is worth a volume of logic.”

New York Tr. Co. v. Eisner, 256 U.S. 345, 349 (1921).

And as history and tradition show, the government

has long been able to offer religious invocation as part

of government functions or recognitions, which applies a fortiori to the private, pregame loudspeaker

prayer at issue here.

“Establishment Clause jurisprudence simply does

not mandate ‘content neutrality.’” Santa Fe, 530 U.S.

at 325 (Rehnquist, J., dissenting). The text of Establishment Clause does not mandate neutrality. And

there is no basis for inferring one historically.

Although the Founders were “careful to establish,

protect, and defend religious freedom and equality,”

the Constitution “contain[s] no provisions which prohibit the authorities from such solemn recognition of

a superintending Providence in public transactions

and exercises as the general religious sentiment of

mankind inspires, and as seems meet and proper in

finite and dependent beings.” Wallace v. Jaffree, 472

U.S. 38, 105 (1985) (Rehnquist, J., dissenting) (quoting Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative

Power of the States of the American Union 470 (Boston, Little Brown & Co. 2d ed. 1871) (1868)).

The historical record is replete with examples of

government-sanctioned prayer. George Washington’s

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inaugural address explained that “it would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules

over the universe, who presides in the councils of nations, and whose providential aids can supply every

human defect, that His benediction may consecrate to

the liberties and happiness of the people of the United

States.” Lee, 505 U.S. at 633 (Scalia J., dissenting)

(quoting Inaugural Addresses of the Presidents of the

United States, S.Doc. 101–10, p. 2 (1989)).

Moreover, “[b]eginning in the early colonial period

long before Independence, a day of Thanksgiving was

celebrated as a religious holiday to give thanks for the

bounties of Nature as gifts from God,” and post-Independence, “President Washington and his successors

proclaimed Thanksgiving, with all its religious overtones, a day of national celebration.” Lynch v. Donnelly, 465 U.S. 668, 675 (1984). Indeed, “[t]he Declaration of Independence ends with this sentence: ‘And

for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and

our sacred Honor.’” Engel v. Vitale, 370 U.S. 421, 450

(1962) (Stewart, J., dissenting).

Following that, “during the summer of 1789, when

it was in the process of drafting the First Amendment,

Congress enacted the Northwest Territory Ordinance

that the Confederation Congress had adopted in

1787—Article III of which provides: ‘Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the

means of education shall forever be encouraged.’”

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Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,

508 U.S. 384, 400 (1993) (Scalia, J., concurring in the

judgment).

Even today, Congress prescribes a national day of

prayer. See 36 U.S.C. § 119 (“The President shall issue each year a proclamation designating the first

Thursday in May as a National Day of Prayer on

which the people of the United States may turn to God

in prayer and meditation at churches, in groups, and

as individuals ”).

B. Disposing of the canard of strict neutrality with

regard to public invocations or expressions of religiosity also disposes of the “endorsement” analysis that

featured in the decision below. As Justice Rehnquist

has explained, “the Court seems to demand that a government policy be completely neutral as to content or

be considered one that endorses religion.” Santa Fe

Indep. Sch. Dist., 530 U.S. at 325 (Rehnquist, J., dissenting). In other words, if one accepts the premise

that the government must be strictly neutral towards

religion—a premise that lacks an anchor in history or

tradition, supra—then the endorsement analysis effectively collapses into merely an assessment of

whether the challenged action is neutral as to religion.

If it is not, a court will conclude that the government

has “endorsed” a particular religion, thereby violating

the Establishment Clause.

That is effectively the analysis that Respondent

here engaged in. In explaining why it prohibited Petitioner from offering a pregame prayer over the loudspeaker before the state championship football game

6

in 2015, Respondent explained that it “gave the impression that it was endorsing the prayer by allowing

the use of its PA system.” Pet.App.200a–01a.

That cannot possibly be right. Nothing in the Establish Clause “compel[s] the government to purge

from the public sphere” anything that endorses or

“partakes of the religious.” Van Orden v. Perry, 545

U.S. 677, 699 (2005) (Breyer, J., concurring in the

judgment). And the government cannot back itself

into the same spot by recasting the challenged action

as unlawful “endorsement” due to the religious nature

of the activity: “The proposition that schools do not

endorse everything they fail to censor is not complicated.” Bd. of Educ. of Westside Comty. Schs. v. Mergens, 496 U.S. 226, 250 (1990) (plurality opinion).

Indeed, the opposite is true—the discrimination

against the religious speech at issue here violates the

dictates of the First Amendment. Shurtleff v. City of

Boston, 596 U.S. 243, 258 (2022) (“Boston concedes

that it denied Shurtleff ’s request solely because the

Christian flag he asked to raise promoted a specific

religion.” (cleaned up)).

II. The Court Should Overrule Santa Fe

To the extent the endorsement analysis suggested

by Respondent and accepted by the courts below is

correct, Santa Fe should be discarded—and this case

presents the ideal vehicle to do so.

A. If not already outrightly rejected, the endorsement test has been narrowed to the point that its contours are no longer discernable even under a microscope. As the Court explained in Kennedy, “this Court

7

long ago abandoned Lemon and its endorsement test

offshoot.” 597 U.S. at 534. Thus, “in place” of the endorsement test, id. at 535, courts are to “refer[] to historical practices and understandings,” Town of Greece

v. Galloway, 572 U.S. 565, 576 (2014).

And that is for good reason. The endorsement test

makes little sense given this Nation’s history and tradition. “[W]hat exactly qualifies as impermissible ‘endorsement’ of religion in a country where ‘In God We

Trust’ appears on the coinage, the eye of God appears

in its Great Seal, and we celebrate Thanksgiving as a

national holiday (‘to Whom are thanks being given’)?”

Am. Legion v. Am. Humanist Ass’n, 588 U.S. 29, 85

(2019) (Gorsuch, J., concurring) (quoting Harris v.

Zion, 927 F.2d 1401, 1423 (7th Cir. 1991) (Easterbrook, J., dissenting)). Indeed, “[w]hen the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public

events to sectarian needs, it follows the best of our traditions.” Zorach v. Clauson, 343 U.S. 306, 313–14

(1952); Lamb’s Chapel, 508 U.S. at 400 (Scalia, J., concurring in the judgment) (“What a strange notion, that

a Constitution which itself gives “religion in general”

preferential treatment . . . forbids endorsement of religion in general.” (emphasis in original)).

B. If the endorsement inquiry is off the table or

has been narrowed to the point of uselessness—which

this Court has undoubtedly signaled, and which is correct as a historical matter—then Santa Fe should be

overruled.

Santa Fe turned nearly entirely on whether the

school district in that case impermissibly “endorsed”

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religion by permitting students to pray over a loudspeaker before football games. As the Court explained:

[T]he District has failed to divorce itself from

the religious content in the invocations. It has

not succeeded in doing so, either by claiming

that its policy is “one of neutrality rather than

endorsement” or by characterizing the individual student as the “circuit-breaker” in the process. Contrary to the District’s repeated assertions that it has adopted a “hands off” approach

to the pregame invocation, the realities of the

situation plainly reveal that its policy involves

both perceived and actual endorsement of religion.

Santa Fe, 530 U.S. at 305; id. at 307 (referring to the

“[t]he actual or perceived endorsement of the message”); id. at 315 (explaining the “policy was implemented with the purpose of endorsing school prayer”);

id. at 316 (“Government efforts to endorse religion

cannot evade constitutional reproach[.]”).

To be sure, in Kennedy, this Court sought to distinguish Santa Fe on the basis that the student-led

prayer there could be said to be “problematically coercive.” 597 U.S. at 541. But coercion is simply the flip

side of endorsement. Lee, 505 U.S. at 605 n.6

(Blackmun, J., concurring) (“[A]nytime the government endorses a religious belief there will almost always be some pressure to conform.”). Thus, a concern

for undue coercion cannot exist apart from endorsement; if the endorsement test is a dead letter, so too

for any test centered on “coercion.” And there is no

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textual, historical, or traditional justification for laminating a “coercion” test onto the Establishment

Clause either. See generally Lee, 505 U.S. at 631–46

(Scalia, J., dissenting).

C. This is a good vehicle to overrule Santa Fe. Respondent’s then-Executive Director, Roger Dearing,

said Santa Fe was “directly on point” in justifying Respondent’s decision to prohibit the pregame prayer at

issue. Pet.App.200a-01a.

Moreover, the district court found “precedence in

… Santa Fe” because it “specifically considered ‘the

pregame invocations’” and “the threshold question

was the same—whether the speech was government

speech or private speech.” Pet.App.65a n.4. Respondent contended that Santa Fe was “spot on” in defending the district court’s judgment. Pet. 14. And in assessing whether the school prayer here was “government speech,” the Eleventh Circuit invoked Santa Fe,

Pet.App.35a, and then assessed whether the activity

at issue here constituted an unwarranted “endorsement” of religion, id at 39a–45a.

Although the decision below was ultimately decided on free speech and free exercise grounds, id. at

33a–53a, both claims turned on whether pregame

loudspeaker prayer constituted government speech;

indeed, the Eleventh Circuit cited Santa Fe for this

point in its free-exercise analysis, id. at 51a–52a. And

the government-speech analysis cannot be disentangled from the endorsement test. See Santa Fe, 530

U.S. at 324 (Rehnquist, J., dissenting) (“The ‘crucial

difference between government speech endorsing religion, which the Establishment Clause forbids, and

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private speech endorsing religion, which the Free

Speech and Free Exercise Clauses protect,’ applies

with particular force to the question of endorsement.”

(emphasis in original) (quoting Bd. of Educ. of

Westside Comty. Schs, 496 U.S. at 250 (plurality opinion))). Santa Fe’s continued viability is thus squarely

implicated in this appeal.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

Brian T. Goldman

Counsel of Record

HOLWELL SHUSTER

& GOLDBERG LLP

425 Lexington Avenue

New York, NY 10017

(646) 837-5151

bgoldman@hsgllp.com

Counsel for Amicus Curiae