3d Circuit: High School Coach Can't Pray With Players

In a closely-watched case, the Third Circuit Court of Appeals has ruled that a New Jersey high school football coach violated the Constitution by initiating and participating in student-initiated pre-game prayers.

Marcus Borden, East Brunswick High School's football coach for 23 years, sued the school after the superintendent informed him that his actions during grace at the pre-game dinner and conducting a pre-game "take-a-knee" type prayer had to stop. Borden claimed that the restrictions violated his 1st amendment rights of speech and association.

The case garnered attention during litigation, and blew open when the federal district court ruled in Borden's favor, saying he could bow his head or take a knee when his team captains led the team in prayer.

The odd thing is, while the Third Circuit completely overruled the district court's opinion, it didn't really disagree with that idea.

The crux of the Third Circuit's decision is the way in which a violation of the Establishment Clause is defined:

A school district also violates the Establishment Clause if “a reasonable observer familiar with the history and context of the display would perceive the display as a government endorsement of religion. The test does not focus on the government’s subjective purpose when behaving in a particular manner, but instead focuses on the perceptions of the reasonable observer.

The Court then explained that, while "not every religious display of a school official will have the necessary 'history and context' to be an Establishment Clause violation," Borden's history of picking players to pray, asking everyone to stand for grace, and leading the team prayer before games meant that any continued act by him would cause a reasonable observer to believe that he, and therefore the school district, was endorsing the religious activity.

This case-by-case, person-by-person analysis caused a lot of sparks on both sides.

Borden's lawyer, who has said he will appeal to the Supremes, noted that it was "clear from the Third Circuit opinion...that public school coaches who do not have a history of praying with their players can bow their head and take a knee." A fact that he called "a bit of an ambiguity."

Rev. Barry Lynn, director of Americans United for Separation of Church and State (who helped defend the district) praised the opinion on this point, saying it would rein in "coaches who want to act like pastors" without overly restraining coaches who just want to support their teams.

HT's: NY Times, ABA Journal