Arkansas State University (ASU) announced yesterday on Constitution Day—when we celebrate the freedoms our Founding Fathers secured for us—that it would allow memorial crosses on its team football helmets. The University’s decision came after it found itself scrambling under a legal blitz by Liberty Institute following the school’s initial ban on the crosses. The crosses were affixed to the helmets simply to memorialize a fellow player and an equipment manager, both of whom tragically died earlier this year.
The controversy exploded in the national media late last week as news of the ban spread. By early this week Liberty Institute stepped in to represent an un-named Arkansas State football player—a client who wanted to remain anonymous due to fear of retribution by University officials who acted on incomplete legal advice and cut up the student memorial helmet stickers.
Quoted in USA Today, Liberty Institute’s Litigation Director Hiram Sasser said of the decision, "This is the exact thing that we asked for. That's what our letter asked for and that is what we're receiving."
ARKANSAS STATE DECISION FOLLOWS THE LAW
Siding with the University’s initial ban was the Freedom From Religion Foundation (FFRF), an anti-religion group who routinely bullies government entities with erroneous but intimidating letters and threats. The FFRF sent a letter to the University complaining about the crosses.
Regarding the FFRF’s position, Sasser stated, “We congratulate Arkansas State University for following the law—especially on Constitution Day—and rejecting the advice of the Freedom From Religion Foundation. The FFRF simply counseled the University to purposefully engage in unconstitutional religious viewpoint discrimination.”
THE CROSSES ARE LEGAL—EVEN AT A STATE SCHOOL
The principle of protected private speech is well cemented in the Constitution and in landmark U.S. Supreme Court decisions.
Liberty Institute’s demand letter to ASU cited five such Supreme Court decisions that protect student speech or prohibit viewpoint discrimination. Banning private student speech because of its religious nature falls squarely within the kind of viewpoint discrimination deemed unlawful by the Court.
Further, as said in our demand letter to ASU, ordering the defacing of the crosses by removing the vertical lines, as ASU did, “goes beyond mere viewpoint discrimination.” These actions “exemplify a hostility to religion that violates the Establishment Clause of the First Amendment.” This, also, is firmly grounded in recent Supreme Court decisions. Liberty Institute’s letter further states:
“In Lynch v. Donnelly, 465 U.S. 668, 673 (1984), the Supreme Court said, ‘[T]he Constitution … affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. Anything less would require the callous indifference we have said was never intended by the Establishment Clause. Indeed, we have observed, such hostility would bring us into war with our national tradition as embodied in the First Amendment’s guaranty of the free exercise of religion.’ (internal cites and quotes omitted).”
Yet “callous indifference” and “war with our national tradition” is exactly what ASU initially did, goaded on by incomplete or misdirected legal advice.
A HEARTLESS POSITION BY THE FFRF
As in every case, beyond the legal controversy there are real people. In this instance, the real people include:
- Beloved equipment manager Barry Weyer and his family. Weyer was killed in an automobile accident in June.
- Former player Markel Owens, tragically killed in a shooting in January.
- The un-named client was represented by Liberty Institute. The player remained anonymous to avoid the possibility of a hostile backlash by the University that could jeopardize his college career and beyond.
“It’s shocking,” says Sasser, “that the FFRF and others would be so insensitive not only to the law but to the people involved. Here you have teammates trying to honor their friends. This is what good people do. We are gratified that the good people in the University, who were given legal advice that does not give a full and accurate representation of the law, changed their minds and did the right thing. The religious liberty and free speech rights of the students were vindicated. And these fallen teammates will have another year on the field because of the courage and compassion of their friends.”
WHAT YOU CAN DO
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This victory demonstrates yet again that religious liberty wins when people stand up to defend it.
About Liberty Institute
Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit www.LibertyInstitute.org.