Who’s First Amendment Is It, Anyway?

The purpose of the First Amendment to the U.S. Constitution has been eroded and molded to fit 21st century liberal sensibilities; that is to say, to take it as much out of the public square as possible.  When Thomas Jefferson responded to the Danbury Baptists, he was responding to a specific question — government interfering with or establishing a religion — and he gave a specific answer.

Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

Basically, the government will not try to take away man’s natural right of conscience.  It’s the coercion factor that was at issue.  An established religion would require allegiance to the state church for all public servants. 

But no matter how much you want to mangle this straightforward concept, did it really mean to abolish this?

East Brunswick High School football coach Marcus Borden, who said he is fighting for his peers nationwide, is expected to petition the U.S. Supreme Court for a review of Tuesday’s federal appeals court ruling that prohibits him from participating in team prayer.

The U.S. 3rd Circuit Court of Appeals in Philadelphia unanimously reversed a July 2006 lower-court ruling that permitted Borden, through his lawsuit against the East Brunswick Board of Education, to silently bow his head or "take a knee" with players as a sign of secular respect for student-led team prayer.

The plaintiffs, represented by Americans United for the Separation of Church and State, say respect is indeed the issue.

"The ruling underscores that school district employees, including football coaches, have to obey the establishment clause and have to respect the religious rights of students," said Richard B. Katskee, assistant legal director for Americans United for the Separation of Church and State, which represented the school board in its appeal of U.S. District Judge Dennis Cavanaugh’s ruling.

Respecting the fact that they were praying, then, is somehow a disrespect of their religious rights?  And what of the rights of the coach?  Does he have to check them at the locker room door?  Note that we’re not talking about him bringing a Bible or leading the prayers; he’s just in the room when the students pray and takes the same position as they do. 

The judges opinions in this case are just as tortured as the logic used to misread the First Amendment. 

The federal appeals court’s 70-page opinion prohibits coaches such as Borden, who have a long history of participating in team prayer, from continuing to do so, but it does not clarify what other coaches should do when their teams pray, which may cause confusion for other coaches nationwide.

"Without Borden’s 23 years of organizing, participating in and leading prayer with his team, this conclusion would not be so clear as it presently is," wrote Judge Michael D. Fischer, author of the lead opinion.

"We agree with Borden that bowing one’s head and taking a knee can be signs of respect. Thus, if a football coach, who had never engaged in prayer with his team, were to bow his head and take a knee while his team engaged in a moment of reflection or prayer, we would likely reach a different conclusion because the same history and context of endorsing religion would not be present."

Judge Marianne Trump Barry, who authored one of the two concurring opinions, called the case "difficult and close." She said that Borden would "not be required to keep his head erect or turn his back or stand and walk away" when the team prays for such actions would suggest a "hostility to religion."

Trump Barry concurred with Fischer that she would likely find "no endorsement of religion were a football coach, who had never engaged in prayer with his team, to bow his head or take a knee while his team engaged in a moment of reflection or prayer."

Judge Theodore McKee, who wrote the third concurring opinion, disagreed with his colleagues. He said taking a knee or head-bowing would look like an endorsement of religion even to someone who did not know the coach had led prayers in the past.

What a morass of exceptions and exceptions to exceptions!  In effect, if the coach takes his religion and the team’s esprit de corps seriously, and often follows suit in position only while the players pray, he’s defying the Constitution.  Otherwise, if he doesn’t care what they do or doesn’t openly support it, it’s no big deal.  Is that really what not establishing an official religion means?  Where’s the coercion, when the prayer is voluntary and student-led? 

The erosion of the free exercise of religion continues.  Up next, no doubt, the banning of team, student-led prayer, if anyone might possibly be slightly offended.  I don’t see how that step can’t be next, and I don’t think the guys who debated the content First Amendment (Jefferson not being one of them) meant for this.

[tags]religious freedom,first amendment,separation of church and state,Thomas Jefferson,Danbury Baptists,East Brunswick High School,Marcus Borden,Americans United for the Separation of Church and State[/tags]

Filed under: Culture • Doug • Education • Government • Judiciary • Religion

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