A sympathetic judge rules that a high school coach can be present during student-led prayers.

Under what is called the "Establishment clause" of the First Amendment to the United States Constitution, the government, or any of its entities such as a public high school, is prohibited from establishing a religion. At the same time, however, under the "Free Exercise clause," the First Amendment protects each person's right to practice (or not practice) any faith without government interference. Accommodating the religious practices of employees and students within the confines of a public institution thus is a delicate balancing act for school and athletics administrators.

A good example of the difficulties administrators face in trying to prohibit the establishment of religion, while at the same time trying not to infringe on an individual's right to practice his or her faith, is Borden v. School District of the Township of East Brunswick [Civil No. 05-5923 (DMC) (2006)].

In October 2005, the East Brunswick (N.J.) Board of Education passed two directives prohibiting representatives of the school district from participating in student-initiated prayer. Unhappy with the directives, Marcus Borden, the football coach at East Brunswick High School, complained to the board of education. Borden argued that for more than 25 years football players at East Brunswick High had engaged in voluntary pregame prayers, and that in order to show solidarity with his players he should be allowed to bow his head and bend a knee during player-initiated and player-led prayers. In support of his position, Borden asserted that he did not want to lead the prayers - which included saying grace before the team's pregame meal, a voluntary team prayer in the locker room before games and the taking of a knee as a team on the sidelines prior to kickoff - he only wanted to be allowed to bow his head as a sign of respect for what his players were doing.

This was the basis of Borden's subsequent lawsuit against the East Brunswick school district. In response, the district argued that it developed the directives because it feared that if it allowed the coach to participate in prayer with students, his actions and therefore the school district's actions could be found to be in violation of the Establishment clause.

The United States Supreme Court has used three different tests to help make such a determination. The best known of these is the Lemon test, as put forth in Lemon v. Kurtzman [403 U.S. 602, 612-13 (1971)], which states that a government practice is constitutional if it has a secular purpose, its primary effect neither advances nor inhibits religion, and it does not excessively entangle government with religion.

The second test, the Endorsement test - developed in both Lynch v. Donnelly [465 U.S. 668, 687-694 (1984)] and County of Allegheny v. ACLU [492 U.S. 574, 594 (1989)] - is used to determine whether a fully informed hypothetical observer would view a government practice as either endorsing or disapproving of religion. The third test, the Coercion test, was first applied by the Supreme Court in Lee v. Weisman [505 U.S. 577 (1992)]. Under the Coercion test, the court must consider a school-sponsored religious activity in terms of the coercive effect that the activity has on students.

In seeking to determine whether Borden's actions violated the Establishment clause, the Federal District Court for New Jersey began by rejecting the Lemon formula, since the question before the court was not whether Borden and his team should be allowed to engage in prayer, but rather whether Borden could remain present, take a knee and bow his head while the team engaged in voluntary prayer. Instead, the court determined that the most applicable test on this case was the Endorsement test, which asks whether a fully informed, hypothetical observer would view a government practice as either endorsing or disapproving of religion.

In ruling against the school district, the district court, while acknowledging that Borden's actions could possibly be looked at as having religious overtones, stated that it did not believe that the bowing of one's head would indicate the endorsement of a religion to a reasonable observer. For example, the court noted that people bow their heads frequently as a sign of respect.

Dropping on bended knee, the court held, also does not have any significance associated with it. In fact, the court held, the act of taking a knee is a time-honored football tradition, and a demonstrative way of showing solidarity, cohesion and seriousness of purpose. The pregame traditions of the East Brunswick High School football team, the court suggested, should be thought of more as invocations, which have been held by the Supreme Court to be permissible and of secular purpose, rather than as prayer.

Tradition, the court held, also should be given some consideration. In particular, the court noted that there is a place for team spirit, team unity and team family, and it would be abnormal for a coach, who is viewed as the glue that holds the team together and the fosterer of team spirit, to be barred from participating in these traditions even in a passive way. In fact, the court noted, if a coach were not able to acknowledge these pregame traditions, it could be looked at as undermining the sense of team.

As for the school district's argument that Borden's actions could be seen as having a negative impact on those players who chose not to pray or otherwise take part in pregame traditions, the court ruled that excluding the coach from participating would make little or no difference. If the coach's intention were to retaliate against students who chose not to participate, it would be easy enough for the coach to find out who did and who did not take part in team prayers.

Some legal commentators have argued that since more than 50 percent of high school football coaches nationwide engage in some form of team prayer, Borden's victory in this case will have national implications. In particular, they argue that coaches elsewhere may use this decision to justify not only their participation in team prayers, but their leading of them, too.

Others, however, believe that the decision will have a very limited impact. In support of this conclusion, they point to two facts. First, the judge in this case was extremely sympathetic to Borden; therefore, even though the school district has said that it will not appeal the case, it could be debated whether the case would have withstood appeal. The court seemed to place an unjustifiable emphasis on tradition, while at the same time diminishing the impact of a coach's effort to promote prayer in a public school.

Second, there remains sharp disagreement among the jurisdictions over which test to apply, and which types of actions violate the Establishment clause. For this reason, until the United States Supreme Court settles the issue by establishing real guidelines in these types of cases, there is always going to be some uncertainty over what is and what is not a First Amendment violation.