Watch Out for the “Bow Police”
Tuesday, April 15th by Robert LoblawBorden v. School District of the Town of East Brunswick, 06-3890 (3rd Cir., April 15, 2008)
This Third Circuit decision addresses a high school football coach’s challenge to the school district’s restrictions on his ability to pray with his players. Plaintiff Marcus Borden has been the head football coach at East Brunswick High School since 1983. For the first twenty-three years of his tenure, he had the team kneel down and say a prayer before each game. He also carried on a tradition of saying grace during team meals.
Borden’s religious traditions created a constitutional dilemma for the school: although students have a First Amendment right to engage in voluntary prayer, the Establishment Clause prohibits teachers and staff from leading or encouraging prayer. In 2005, after a student complaint, the school district instructed Borden not to participate in these prayerful activities. But the players continued to engage in voluntary prayer.
Borden then sued, seeking a declaratory judgment that would allow him to bow his head during grace and to kneel alongside his players during their pre-game prayer. He argued that this silent activity was a sign of respect for his players rather than participation in religious activity. The district court sided with Borden, concluding that the school’s restrictions on Borden were unconstitutional. The district court further held that Borden’s silent acts of bowing his head and bending on one knee did not violate the Establishment Clause.
On appeal, the Third Circuit unanimously reverses, holding that the school’s policy survives constitutional scrutiny, and that Coach Borden’s silent activities violate the Establishment Clause in light of his twenty-three year history of encouraging team prayer.
The decision is a fractured one, with all three panelists offering their views on the constitutionality of Coach Borden’s religious practices. Indeed, Judges Fisher and Barry believe that most high school coaches could kneel down with their team without violating the Establishment Clause, just not Coach Borden, given his long history of encouraging and leading team prayer; Judge McKee disagrees on the ground that a coach who kneels with his team is participating in prayer, and he has a picture to prove it.
Finally, Judge Barry’s concurrence highlights the inanity of this litigation:
One wonders how a court can dictate, beyond a certain point, what response [to players’ prayer] is permissible, much less how a response would be enforced. Defendants told the District Court that Borden can bow his head, but he cannot do “a pronounced bowing of the head.” What is “pronounced,” and who would decide that question? As defendants also told the District Court, “The district does not have thought police, and we certainly don’t have bow police.”
She concludes,
With this litigation hopefully nearing its end, one also hopes that those involved will move forward as a team for the benefit of the young people who look to them for guidance and support.
Can I get an Amen?
April 15th, 2008 at 11:01 am
The problem is that the wall of separation is slowly crumbling. So there are bound to be asinine decisions such as this arising out of the rubble. I think Jesus said it best by suggesting that people should not pray in public as the hypocrytes do, but in private. Matthew 6:6
If everyone followed this, there would be no problem.
April 15th, 2008 at 5:54 pm
The problem is either the establishment clause gives no guidance (buzz words) for the appropriate test leaving the Supreme Court free to make whatever test it likes, or, at the “framing of the constitution,” it was so obvious to them what establishment meant that it needed no further elaboration.
They should do what the judge in PA did for the evolution case and just apply every test the Supreme Court has fashioned and rule the same on all of them. It’s impossible to really differentiate out a result from each test without looking into the personal opinion of the judge.
April 16th, 2008 at 5:29 am
“at the “framing of the constitution,†it was so obvious to them what establishment meant that it needed no further elaboration.”
Well I agree that what the first amendment meant at its inception is different from how we interpret it now. I think it meant what it said, that the federal government could not establish a religion. I.e., there could be no “state” religion. And furthermore, that limitation applied solely to the federal government as there was nothing stopping the states themselves from establishing a religion.
I think what we’ve recognized since then is that differing religious groups do not always get along, to put it politely. To solve such problems we attempted to erect a wall around neutral public zones where we do not practice religion.
For example, do we keep our public schools neutral, allow one or two major religions to dominate and impose their views on followers of minority religions, or teach every religion and dilute them all? Obviously (to me at least) the most reasonable choice is a neutral public school. If you must attend religious schooling under your faith, you are perfectly free to do so. (And don’t raise the argument that your tax dollars should not go to neutral public schools. My taxes go to any number of things I don’t agree with, but that does not mean I have any standing to complain about it.)
However, as I pointed out before, the wall is crumbling and now students are allowed to pray in this once neutral area. So we get an asinine decision that does not allow a coach to pray along with those students. I’m an atheist, but even I think that’s stupid. Clearly if students have a right to pray at school, then coaches should have the same right.
But of course, the better approach (to me) is to keep the public sphere neutral and allow prayers to occur in church/private. If everyone followed that, we would have no problems.
April 17th, 2008 at 5:48 pm
The question on your choice boils down to one of degree. I’m not disagreeing with your, or even agreeing, I’m just trying to point out that even a policy that is “neutral,” often creates questions of how neutral should it be. For instance, should we do what France has done and bank religious symbols/clothing (i.e. crosses, headscarves) in schools. Or should we allow students to individually wear their religious garments and symbols but not pray?
The other wrench in this is the free exercise clause, b/c the states cannot force you to exercise or not exercise your religious beliefs. So to the extent a neutral policy affects this is a one of degree. However, if you’re like Scalia then it’s no problem and the state can regulate it if the law is neutral on its face.
April 18th, 2008 at 4:49 am
“states cannot force you not to exercise your religious beliefs”
Actually, it’s quite simple. I answered this already in my last comment.
In other words, no one is forcing anyone to do or not to do anything. If under your faith you have to promote your religious belief through the wearing of religious objects, go to a private religious school.