ATLANTA (CN) — Accused of trampling the rights of a school that wanted to recite prayers over a stadium loudspeaker before a championship football game, an attorney for the nonprofit Florida High School Athletic Association told the 11th Circuit on Tuesday that, regardless of the underlying facts of the case, new state protections for prayers may have mooted the case.
H.B. 225 changed the makeup of the association's governing board and permits events to begin after two minutes of opening remarks, which can include prayers) before events. It also bars the athletic association from controlling, monitoring or reviewing the content of opening remarks. Republican Governor Ron DeSantis signed the law last month.
Attorneys for Cambridge Christian School still argued at Tuesday's hearing, however, that the association needs to adopt new policies to safeguard its ability to offer prayers at championships games.
Unless the association officially revokes its position, the new state law does not ensure legal relief for the school, argued Jesse Panuccio, a lawyer with the firm Boies Schiller & Flexner who is representing the school.
“That is a constitutional judgment that they’ve come to and that would override any state law according to them,” Panuccio said. “As far as we can tell, the prayer ban is still in place.”
Panuccio noted that the association had justified the prayer ban as required by the First Amendment's establishment clause, which overrides state law.
Tuesday's hearing marked the case’s second appearance before the Atlanta-based appeals court in its seven-year history of litigation.
The suit stems from a 2015 state championship football game in which student athletes on both teams prayed together at the 50-yard line before the game after the athletic association refused to authorize prayers over the loudspeaker.
After the 11th Circuit previously reinstated some claims from the school that had been dismissed, the case returned to the district court where U.S. District Judge Charlene Honeywell again ruled in favor of the association.
Honeywell, an Obama appointee, found that pregame speech over a public-address system at a game hosted by the state qualifies as government speech. She called the association’s restrictions on speech delivered over the PA system were “reasonable and appropriate," pointing out that the game was hosted by the association — a state actor — and that the PA system was part of the government-owned stadium.
Attorneys for the athletic association have argued that the decision to reject the school’s request was motivated by the belief that broadcasting the prayers would have violated the establishment clause, which provides for a degree of separation between church and state.
The school has latched on this reasoning, arguing that, even with the new Florida law, this interpretation of federal law could still affect pregame prayers.
The association has pushed back on this. “There is no longer any imminent or impending threat of injury to the school,” said Daniel Mahfood, an attorney with Holland & Knight who is representing the association. “If a school wants to say a prayer, by law they now have that right.”
In court on Tuesday, Senior U.S. Circuit Judge Ed Carnes questioned Mahfood about the association's policies, asking why his client still had not formally retracted or at least issued a clarification for rules on pregame prayers.
“Maybe the association will come out with a statement. They haven’t yet. But our judgment was that it’s not necessary, that the statute is clear,” Mahfood replied.
The only way the school could continue claiming a legal injury, he argued, is by speculating that the association will not enforce the law. He stressed the association functions as a state actor and was entitled to the "presumption" that it would follow the U.S. Constitution and other laws.
The panel did not indicate when it would issue its latest decision in the case. Carnes, a George H.W. Bush appointee, was joined on the panel by U.S. Circuit Judge Britt Grant, a Donald Trump appointee, and Senior U.S. Circuit Judge Gerald Tjoflat, a Gerald Ford appointee.
Follow @KaylaGoggin_CNS
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
