A federal appeals court recently heard arguments over a lower court's ruling that allows a New Jersey high school football coach to kneel or bow his head during student-led team prayers before games.
A lower court had sided last July with East Brunswick School District's football coach, Marcus Borden, ruling that "taking a knee" is not praying.
In his lawsuit, Borden claimed that that the district violated his free-speech rights when it ordered him to stop kneeling and bowing his head — acts he considered secular signs of respect — during pre-game prayers led by student players.
One judge of the three-member panel in the appeals hearing this past Wednesday expressed a similar opinion to the lower court's decision.
"I don't see how bowing a head or taking a knee constitutes participation," said Judge Maryanne Trump Barry, according to The Home News Tribune.
She also agreed with the lower court judge's opinion, calling the district's policy prohibiting the coach from showing respect for prayer "vague and overbroad."
"How are you going to enforce this? Are you going to walk around with a ruler?" Judge Barry asked the school district. "What if he has his head bowed but he says he's not praying?"
The U.S. Supreme Court in 2000 had previously ruled that a school district's policy permitting student-led, student-initiated prayer at football games violates the First Amendment. However, the decision allowed for students to pray voluntarily in schools.
In the case of Borden, who is also a Spanish teacher, students lead the team in prayer before the game in the locker room. A Boston Globe photo presented in the hearing shows the coach taking a knee with players in the locker room.
"I do have an issue with whether this is truly student-initiated prayer," said Federal Appeals Court Judge Theodore A. McKee on Wednesday, noting that students might feel compelled to pray knowing where Borden stands in the issue.
"In the end what matters is how a reasonable student would perceive what Borden is doing. A reasonable observer would conclude he is praying with the team," said McKee, according to the Tribune.
Despite the different opinions exchanged between judges Barry and McKee, the entire panel seemed to agree that the evidence before them leaves them little room to rule other than let stand the lower court's decision.
The judges also questioned why the school district initially expressed satisfaction with lower court's ruling instead of filing an appeal.
Following the decision by Federal Court Judge Dennis Cavanaugh, the school district issued a statement saying it was "pleased" that it could get direction from the court on what the coach could and could not do.
According to a report in The Star-Ledger of New Jersey, the appeal was filed in August 2006 after the board realized it could have to pay legal fees amounting to more than $100,000.
McKee described the cases as "a matter of some local school-board politics" and "not a monumental First Amendment case at all."
Ronald Riccio, Borden's attorney, has urged the court to dismiss the case because there was no evidence that the coach promoted religion in kneeling and bowing his head with the team.
"History and practice supports the conclusion that there was no endorsement of religion," Riccio said, according to Reuters.
In his ruling , Cavanaugh had said, "For the coach, who is looked at as the glue to hold all of this together and foster team spirit, to not be allowed to participate in these traditions – even in the passive way – just doesn't seem right."
The federal appeals court did not indicate when it would issue a decision.