Fresh off his spectacular failure to secure the 2012 Republican presidential primaries, Texas governor Rick Perry has returned to a role more congenial to him – testing the boundaries of the separation of church and state.

This month, Perry has vocally weighed in on a dispute between a Texas public school district and a group of high school football cheerleaders. The cheerleaders at Kountze High School, near Houston, had displayed large banners and signs at games containing religious messages; the messages made repeated references to God and Christian scriptural citations. Citing Establishment Clause concerns – especially the precedent of the Supreme Court’s decision in Santa Fe School District v. Doe – school officials ordered the cheerleaders to stop. After fifteen of them sued in federal court, a U.S. District judge issued a stay allowing the cheerleaders to continue to use their signs pending a full hearing in June of next year.

As the controversy developed this month, Governor Perry jumped in with alacrity, demonstrating an approach entirely consistent with his longstanding position on the public role of religion.  Perry and the Texas attorney general — speaking in front of a banner proclaiming, “If God is with us, who can be against us?” — declared that they saw no constitutional problem with the cheerleaders’ banners. In his words, “We’re … a culture built upon the concept that the original law is God’s law, outlined in the Ten Commandments. If you think about it, the Kountze cheerleaders simply wanted to call a little attention to their faith and to their Lord.” Perry also called attention to what he viewed as the religious signs’ compliance with a Texas law he championed, the 2007 Religious Viewpoints Antidiscrimination Act (RVAA). Both the recent cheerleaders controversy and the underlying legislation itself raise serious constitutional questions, and Governor Perry’s pattern of behavior as Texas’s governor strongly suggests an agenda bent on skirting, if not subverting, constitutional limitations on the separation of church and state.

Governor Perry is no stranger, of course, to accusations of impermissible public endorsement of religion. In the summer of 2011, he lent considerable personal and official support to “The Response,” a prayer event – heavily Christian in emphasis – that was sponsored by the Christian-right American Family Association and took place at a Texas football stadium. The AFA, which has been labeled a “hate group” by the Southern Poverty Law Center, promoted the event by featuring a videotaped “invitation” contributed by the governor. In the video, Perry asserted that “[a]s a nation, we must come together and call upon Jesus to guide us through unprecedented struggles, and thank Him for the blessings of freedom we so richly enjoy.” A legal challenge to Perry’s use of his office to promote a sectarian event was rejected on standing grounds by the Southern District of Texas, and the governor made no apologies for his advocacy. Freedom from Religion Foundation, Inc. v. Perry (S.D.Tex.,2011).

Several years before “The Response,” Perry threw his weight behind the RVAA, a 2007 legislative enactment intended to facilitate a greater role for religious discourse in public school events. Consciously framed in response to the Supreme Court’s decision in Santa Fe Independent School District v. Doe (2000) and other “equal access” cases like Rosenberger v. University of Virginia (1995), the RVAA had two primary effects: (1) it required schools to set up “limited public forums” for non-curricular school functions such as graduation ceremonies, football games, and PA announcements, and (2) it required that student speakers at such forums who chose to include religious expression not be discouraged or prevented from doing so.  A model policy accompanying the act purports to guide school districts in promulgating neutral criteria for the selection of speakers, and the RVAA allows schools to police student speakers with regard to non-religious content such as “vulgarity” or non-event-appropriate material.

The State of Texas continues to support the RVAA as a vindication of the principle that “freedom of religion should not be mistaken for freedom from religion,” and it maintains that its policy is in line with Supreme Court precedent and federal Department of Education guidelines on acceptable school prayer.  However, the recent controversy with the Kountze High School cheerleaders – whose actions the governor maintains should have been permitted under the RVAA – demonstrates the extent to which applications of Texas’s policy can be in friction with the Establishment Clause. Moreover, and whether or not he has violated explicit constitutional norms, Perry’s actions are reflective of a state government which has stepped considerably beyond the bounds of neutrality or even nonsectarian accommodation of religion.

In Santa Fe Independent School District v. Doe, the Supreme Court applied its Establishment Clause jurisprudence to invalidate a Texas school district’s policy of holding a yearly election to determine whether an invocation would be given at football games and to elect the student speaker to give such invocations. Relying on the principle it had laid down in Lee v. Weisman (1992), the Court found that, despite the fact that a student prayer-leader at a football game would nominally be speaking for herself, the context inevitably gave rise to the inference that her speech – and its religious thrust – would have the imprimatur of the school. “The realities of the situation plainly reveal that its policy involves both perceived and actual endorsement of religion. In this case, as we found in Lee, the “degree of school involvement” makes it clear that the pre-game prayers bear “the imprint of the State and thus put school-age children who objected in an untenable position.” Furthermore, the Court found that the majoritarian process the school employed to select a speaker exacerbated, rather than alleviated, the constitutional injury: “Such a majoritarian policy does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront.” Like the graduation benediction at issue in Lee, the Court found that prayers at football games implicitly coerced students with minority religious views into an unacceptable choice between enduring school-endorsed religiosity or forgoing participation in one of the central rituals of high school life.

The Court in Doe was also careful to note that the Constitution would not necessarily prohibit public student religious expressions when made in the context of a legitimate “limited public forum.” In supporting the Kountze cheerleaders and pushing through the RVAA, Perry and his allies rely primarily on this distinction between a public forum – in which students who wish to express religious viewpoints must be included (see Rosenberger) – and school-sponsored speech. Despite the protestations of the Act’s sponsors, however, the RVAA remains problematic, as exemplified by the recent cheerleaders controversy.

At Kountze High School football games, the cheerleaders’ religious banners stand front-and-center, especially during pre-game festivities; before at least one game, the paper barrier through which the team punched to run onto the field was decorated solely with a scriptural verse. At school sporting events – especially high school football games in Texas – cheerleaders represent a school’s colors and its identity in a highly visible role. In such a context, many observers would reasonably conclude that the cheerleaders’ message represented the school itself, and not their private religious beliefs.

In addition to the problem of implicit endorsement, two other concerns mar the RVAA approach under which Perry seeks to justify his support of the cheerleaders in this case. First is the “captive audience” problem.  The Court found in Doe that a high school football game, while not “mandatory,” is important enough for the life of a student to be considered practically so in assessing the burden on her. Though the cheerleaders’ display is likely not as intrusive as is a benediction broadcast over a loudspeaker, it may nonetheless be hard for a viewing student to separate out from the tableau of the game. As Melissa Rogers noted in the Texas Law Review, at least some circuit precedent supports the notion that captive audience concerns and the appearance of endorsement extend to student religious expressions which are nominally personal, but which use school equipment or ceremonies to reach their audience. See Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979 (9th Cir. 2003).

A second, related problem with the RVAA is whether the “public forums” it creates are really public forums at all. With respect to the current controversy, the Kountze school district itself thought that the role of cheerleader does not create a forum for student expression under which the school is obligated to respect religious expression. It was surely right to do so, which makes Perry’s vocal support for the cheerleaders against the school district here even more remarkable. Even on its face, however, the RVAA preserves too great a role for school authorities, leading to the inference that a school is not merely opening the door for free speech but putting its thumb on the scale.  The model policy accompanying the RVAA made clear that schools are authorized to review student expression for its “appropriateness” to the occasion, and to screen out irrelevant or vulgar content. The greater the school role in supervising speech, the more problematic the schools’ specific mandate not to “discriminate” against religious speech becomes.

The issue of the legitimacy of the “public forums” created under the RVAA raises a larger question – whether the Act and the governor’s policy moves arise from an impermissible purpose. Although the Supreme Court’s three-part “test” from Lemon v. Kurtzman (1971) has come in for substantial criticism (mostly from the Court’s Right), it still provides broad guidance for Establishment Clause cases; it holds that a government act “must have a secular legislative purpose” and that its “principal or primary effect must be one that neither advances nor inhibits religion.” Much more recently, in McCreary County v. ACLU (2005), the Court held that an objective inquiry into the “manifest purpose” behind a purportedly secular government action (there, a Ten Commandments display couched as a exhibit on law’s history) may give rise to an inference of an Establishment Clause violation. Here, the mission espoused by Texas – ensuring that students who wish to express themselves religiously do not suffer discrimination – is valid. However, its history shows that the Act was framed as a direct response to the Court’s decision in Doe striking down prayer at football games. Of course, tailoring a statute to skirt the bounds of Supreme Court precedent is a common legislative maneuver, but the history here calls for healthy skepticism of whether the Act’s “public forums” are really Trojan horses – vehicles giving school officials cover to encourage prayer at school events. The majoritarian bias likely built into any process for selection of student speakers also makes it likely that the RVAA will systematically provide a mouthpiece for evangelical Christians – like the Kountze cheerleaders, the major legislative sponsors of the bill, and of course governor Rick Perry himself.

In striking down the football invocation policy at issue in Doe, the Fifth Circuit spoke in terms equally applicable to the present controversy. “Does the character of the place, the pattern of usual activity, the nature of its essential purpose and the population who take advantage of the general invitation extended make it an appropriate place for communication of views on issues of political and social significance?” Doe v. Santa Fe Sch. Dist., 168 F.3d 806, 820 (5th Cir. 1999). The Fifth Circuit thus proposed a common-sense smell test: a school event cannot be converted into a “public forum” by fiat, but must exist in a context in which an exchange of a variety of personal opinions is natural and appropriate. Texas’s policy fails to distinguish itself from past Texas schemes rejected by courts, and it fails to pass muster under the Establishment Clause precedent of the Fifth Circuit and the Supreme Court. Perry’s personal conduct is even more out of bounds. In his advocacy of a purportedly neutral piece of legislation in such sectarian terms, he has crossed the line between accommodation of religion and active advocacy — and it is not the first time the governor has done so.