The controversy over religious freedom started about a year ago when the Kountze Independent School District – just about 90 miles northeast of Houston – banned their cheerleaders from displaying religious banners during football games.
The ban came after a complaint by the Freedom From Religion Foundation, which argued the Christian messages constituted state endorsement of a particular religion.
As a result, the cheerleaders sued and in May, a district court overturned the ban. The school district officially supported the ruling but filed an appeal because it wants to stay in control of what messages can be displayed.
"So what we did today is file what is called an amicus brief, a friend-of-the-court brief."
Rebecca Robertson is the legal and policy director of the Texas ACLU and spoke on KUHF's Houston Matters show on Thursday.
"We don't represent any parties in the case. We just want to inform the court – the appellate court that's going to be deciding the issue – about what the First Amendment issues are, because really neither party in the case is representing the Constitution accurately."
Robertson says the case is clear-cut because the religious messages displayed by cheerleaders are school-sponsored. She compares the issue to the Santa Fe ISD v. Doe case, where the Supreme Court ruled that school districts can't allow student-led prayer through school loudspeakers.
"They control who gets to speak, they control what is said, they control the circumstances in which it's done, and it's not opened up to all students of all faiths. And so, this is not a hard case for me because the school is so controlling the message, it's very much a case of government speech."
Hiram Sasser is the director of litigation for the Liberty Institute, the Christian advocacy group representing some of the cheerleaders. The one thing he agrees on with the ACLU is that the case is straightforward.
"Well, I think it's clear-cut that this is the private religious speech of the cheerleaders and despite (of) what the Kountze school board and its friends at the ACLU say about it."
But Charles "Rocky" Rhodes, constitutional law professor at the South Texas College of Law, says it's a little more complicated.
"Now I'm not saying that it's not necessarily... may still be an establishment clause violation but I don't think it's that clear and I don't think you can just say that Santa Fe Independent School District controls it when that was a prayer over loudspeaker, it was a religious exercise. This is a sign, people can look away and the cheerleaders are responsible for the content of the sign and pay for their sign out of their own money."
Both Kountze ISD and the ACLU argue that the messages on the banners represent the school and not the individual cheerleaders.
Hiram Sasser says he expects the case to go to the Texas Supreme Court. Should there be another appeal then, the U.S. Supreme Court would have the final say on the matter.