The Kooky Case of the Kountze Christian Cheerleaders

kountze Christian cheerleaders

The parties to the lawsuit already agreed to dismiss and the case should be over. Why are Texas’s US Senators Ted Cruz and John Cornyn weighing in on a frivolous Christian case?

Texas’s U.S. Senators Do Not Know What They Are Doing

Kountze (pronounced ?Coontz?), a small Texas town of slightly more than 2000 people, 95 miles northeast of Houston, is the latest battleground over the alleged right of Christians to inject the Bible into a public school sponsored function. A lawsuit between a minority of the cheerleading squad and the Kountze Independent School District has caught the attention of both of Texas’s United States Senators, John Cornyn and Ted Cruz, who claim in press releases to have filed a brief on the cheerleaders? behalf in federal court.

The case is not pending in federal court. It is pending in a state appeals court in Beaumont, the Ninth Court of Appeals of Texas. Not a federal court. That is lie number one. Ironically, in their opening brief, the senators claim to be ?uniquely qualified? to help the state appeals court understand federal First Amendment issues. Yet they don’t even seem to know which court the case is pending in. However, their Texas lawyers seem to have more of a grip on the situation.

The second lie is that they filed a brief at all. Since neither Cruz nor Cornyn has standing to appear in this case, they cannot have ?filed? a brief in support of the cheerleaders. There is a distinction in Texas law between ?filing? a brief, as opposed to merely sending a brief to the appeals court in a case in which you have no legal standing to appear, in which circumstance the court marks the brief ?received? as opposed to ?filed.?

According to the docket sheet on the Ninth Court of Appeals website, the brief drafted by the senators has not been filed. The senators, in conjunction with a Texas law firm that includes former Texas Attorney General employees, drafted an amicus brief. ?Amicus? just means friend, or friend of the court. The brief, as of January 4, 2014, has not been filed, but has merely been ?received.? Yes, the court got it. But not just anybody can file anything they want to in any case on appeal, making the Senators? claims of having filed a brief in this case legally false.

All the amici or friends of the court submitting amicus briefs have been marked ?received.? The Court of Appeals can completely ignore the amicus briefs they received if they want to. The value of a well thought out amicus brief: possibly a lot, but potentially zero. The value of the Senators amicus brief: less than zero, because they get everything wrong. The Tea Party street cred gained by Senators drafting an irrelevant brief in what should be a non-case: priceless.

There Is No First Amendment Speech Issue In This Case

These two US Senators are no friends of the court or the people of Texas. The entire case on appeal is merely a pointless religious-political dog and pony show, because Kountze ISD agreed to let the Christian Kountze cheerleaders use Biblical slogans on their tear-thru banners, the ones the team runs through and rips apart before the game. Kountze ISD and the cheerleaders agreed to dismiss all the claims, including any First Amendment claims, then pending before the trial court. And Kountze ISD told the trial court that it no longer had any jurisdiction over this case because the parties had agreed.

Normally, trial judges are thrilled to dismiss cases and get them off of their backlogged dockets. The trial judge had no authority to grant summary judgment on claims not before the court. Instead, the trial judge granted a partial motion for summary judgment filed by the cheerleaders. The judgment states that the banners did not constitute an Establishment Clause violation. The only issue on appeal should be the trial court’s authority to enter summary judgment on a basis not pled in a case in which all the claims had already been dismissed.

This Case Is A Poster Child For Government Waste

Republican politicians at every level have decided to turn this case, in which the Christian cheerleaders had already gotten everything they asked for, into a political circus purely for the symbolic benefit of the Christian Right.

I don’t know anything that says ?government waste? more clearly than a court case that wastes the resources of the state judiciary or the limited resources of a very small school district on a non-issue. Or the intervention in a non-case by Texas Attorney General Greg Abbott, who is also paid by state taxpayers, in a state where everything from education to healthcare is woefully underfunded and seriously subpar. Texas has no state income tax. What they have is the ?Robin Hood? plan, in which wealthier school districts are forced to pay for schools statewide. Rich school districts hate it, but a state income tax would be political suicide. So forcing Kountze ISD to defend against a nonexistent First Amendment case is beyond wasteful and stupid. Texas ranks 49th in spending per student, out of the 50 states and the District of Columbia.

In a perfect world, this case would be reversed and an order entered to dismiss the case and undo the summary judgment. Kountze ISD had to appeal, because as it stands there is an order that does not state any legal basis for the Establishment Clause holding.

Texas’s U.S. Senators Do Not Know What They Are Doing, Part II

Kountze ISD called the Senators’s amicus brief irrelevant, because it does not address the real issues before the court.

?In addition, it is mistaken because the Senators misunderstand the facts of the case and misconstrue the relevant precedents.?

The Senators also do not seem to understand that the voluntary dismissal of the First Amendment claims mean that issue is not before the appeals court at all. But briefing that issue is totally consistent with their propaganda campaign about religious speech in any forum being protected by the First Amendment.

When Senator Cornyn was Texas Attorney General Cornyn, he argued a loser school prayer case in which the state had no interest called Santa Fe Independent School District v. Doe, at the United States Supreme Court. He got special permission to argue because, again, he did not actually represent any party in the case. Another political opportunity the people of Texas paid good money for.

His brief says that his argument in Santa Fe ISD what makes him uniquely qualified to tell the Ninth Court of Appeals of Texas what the First Amendment allows, even though he lost the case in the Supreme Court 6-3 to a solo practitioner. Texas argued that student initiated and led prayer at public high school football games should be protected First Amendment speech that trumps the Establishment Clause. It isn’t and it doesn’t.

Ted Cruz’s mentor, the late Justice William Rhenquist, was one of the dissenters to the win for the Establishment Clause.

The facts in the Kountze cheerleader case appear to be almost exactly the same as those of Santa Fe ISD v. Doe. The Does, a Mormon and a Catholic, were objecting to the student initiated and led prayer at a public high school football game. In this case, there are no Does in this case. The Senators confuse Kountze ISD with the Does, but neither party to the Kountze ISD case is arguing that the Establish Clause should apply here, or that the First Amendment somehow trumps it.

In Texas, Things Can Always Go Wrong(er)

Regardless of the outcome of this really trivial case, the Senators have demonstrated that they are willing to weigh in on a case that they know less than nothing about to pander to the Christian Right. The ACLU probably submitted their brief out of an abundance of caution, because if things can go wrong in a Texas court, they often will.

One possibly hopeful sign is that the Ninth Court denied everybody’s requests for oral argument. There’s nothing to discuss. And the Appellee’s brief drafted in conjunction with the Liberty Institute is too dreadful to even discuss. Those dismissals mean nothing! Those issues are still before the court! Ignore the judgment of the court below! There used to be penalties for making frivolous arguments in court. The Liberty Institute’s staff of eight Christian male lawyers, whose purported mission is to restore religious liberty in America, has filed a truly silly brief.

Nobody but the lawyers for Kountze ISD and the ACLU seems to either know or care about what is really going on in this case. If I were a judge on the Ninth Court of Appeals of Texas, I would be sanctioning a whole bunch of lawyers, including a couple of US Senators, for filing or submitting frivolous briefs.?Hint to all counsel representing or supporting the cheerleaders: It’s called invited error.

Edited/Published by: SB