Football, freedom, and the First Amendment: public school sports teams and religious liberty

It’s interesting reading the dueling partisan treatments of the Freedom from Religion Foundation’s recent cautionary letter to Walker County, Georgia, about that county’s school system’s rather evangelistic understanding of the rules of football. According to the Christian Post, whose headline reads “Atheists Attack Church for Feeding High School Football Players,” the Freedom From Religion Foundation is basically trying to outlaw religion in Georgia. The Freedom from Religion Foundation’s more recent release is mostly spent ridiculing the Christian legal foundation offering to represent Walker County in any legal actions that unfold from the FFRF’s original letter (though in the FFRF’s defense, Liberty Counsel’s breathtaking incompetence is indisputable).

Some background. The Freedom from Religion Foundation sent a letter to the school system of Walker County, Georgia, last week, warning them over complaints about aggressive Christian evangelism on the school’s football team. What the Christian Post’s article snidely dismisses as the kindly charitable acts of a few well-meaning churches (intruded upon by unseemly out-of-state atheist forces) is alleged to be considerably worse than that. According to the Times Free Press and the FFRF’s press release, the school is being specifically warned about:

• “Football team trips to a church for meals and Christian messages

• Coach-led postgame prayers

• Bible verses on team apparel

• Mariakis’ participation in the Fellowship of Christian Athletes

• Pressuring students to attend a Christian football camp.”

The First Amendment jurisprudence on questions like this has been pretty consistent for the last couple of decades; perhaps the easiest way to put it is that the Freedom from Religion Foundation wins its legal battles consistently more than groups like Liberty Counsel does, not to say that the FFRF has gone undefeated. While the courts have some waffling inconsistencies on issues like displays of religious creches on government property during religious holiday seasons, the battleground of the public school is pretty friendly  territory for the secular jurist. If you’re completely new to First Amendment jurisprudence on how and when the state can condone and restrict religious activity, here‘s a good place to start.

The courts have long recognized the important difference between religious people doing religious things in their own private institutions, and religious people doing religious things through a government-provided megaphone like a school or a courthouse. While there is of course nothing illegal about leading Christian prayers for the football team of a private Christian school, things get harrier when your tax dollars and mine are the ones paying for it directly.

The Lemon Test, as it’s called, is technically a test the courts use for evaluating new laws, as opposed to non-legislative government action like a state-employed football coach preaching to public school students, but the general principles behind the Lemon Test are consistent across church/state jurisprudence.  The Lemon Test consists of just a few, simple questions you should be asking when you see government energy being expended n ways that are apparently religious:

1. Does the state action serve a secular purpose?
2. Is the state action at least facially neutral and non-discriminatory among religious opinions?
3. Does the government come out of the action still untangled from religion?

If the answer to any of those three questions is “no,” you’re in trouble. Again, this specific three-question test is only technically appropriate for a time when a court is being asked to review a law passed by a state legislature or by Congress; the Lemon Test wouldn’t be strictly applied in circumstances like a public school football game, but the principles are the same.

By taking a government paycheck and spending his days in a government school guiding the activities of public school students who are compelled by law to attend that school, the coach of the Walker County football team has placed himself deeply beneath the purview of the Constitution. He has become a “state actor,” meaning a person who doesn’t hold any elected office or position of political authority, but who still, by virtue of their position, has a special set of legal duties over and above what the normal employee has. Imagine a spectrum of employees, with police officer or Congressman on one end (hardcore state actor) and contract worker for a private company (totally non-state actor) on the other. A public school gym teacher is much closer to the police officer than the contract worker, even though it doesn’t seem like he’s doing anything particularly “government-like.” He isn’t writing any laws, he isn’t putting anyone in jail. He’s just doing his job (with a Christian twist to it, to be sure), but what’s most important is that his pay comes straight from the government, and that his pay is for working at a public school.

Public school teachers have a captive audience, on authority granted straight from the government and on state funds. They’re as much a direct arm of the state as the Congress itself, which is why the historical progression has been to cleanse them of sectarianism entirely: Bible readings are out, teacher-led prayers and “moments of silence” are out, creationism has been thrown out more times than I can remember (just kidding, it’s six major cases), and prayers at sanctioned events like graduations and football games have gone the same route. If the Walker County schools are wise, they’ll heed the failures of past attempts to mingle churches with public schools and play football like it’s a sport, not a brainwashing opportunity.


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2 Responses to “Football, freedom, and the First Amendment: public school sports teams and religious liberty”

  1. Creationism is dead. Long live creationism! « Skeptic-At-Law Says:

    […] Skeptic-At-Law Pro bono litigation in the case of reality v. fantasy « Football, freedom, and the First Amendment: public school sports teams and religious liberty […]

  2. Galloway v. Greece: a Lemon Test no-brainer | Skeptic-At-Law Says:

    […] against the establishment of state religion (hence the “Establishment Clause“) is the Lemon Test. Despite all attempts by the conservative wing of the Supreme Court to curtail the use of the Lemon […]

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