BLAW 3230 Chapter 12: Religion and Sports

1. Sports Practice and Competition Prayer 2. High School Graduation prayer

2 Interscholastic Environment Issues:

 Elk Grove Unified School Dist. v. Newdow (2004)

Initial Cases - Pledge: ◦ Issue of whether 1954 insertion by Congress of the phrase "under God" into the Pledge of Allegiance violated the First Amendment's Establishment Clause.  Split between the 9th and 7th Circuits ◦ Supreme Court ruled that Newdow lacked standing so didn't rule.  Rehnquist: "heckler's veto"; to declare it as a violation of the Establishment Clause would have the unfortunate effect of prohibiting a commendable patriotic observance

 Engel v. Vitale (1962)

Initial Cases - Prayer: ◦ State officials may not mandate that a prayer be recited at the beginning of each school day, even if it is denominationally neutral and student participation is optional.  Students can engage in voluntary prayer activity on state property, but teacher-led prayer was considered directed by the government and unconstitutional

 Wallace v. Jaffree (1985)

Initial Cases - Prayer: ◦ Struck down Alabama statute adding "or voluntary prayer" authorizing a period of silence for meditation in public schools.  Motivated entirely by religious purpose

 Chaudhuri v. State of Tennessee (1997)

Intercollegiate Sports: ◦ Generic Prayers have a secular purpose of dignifying or memorializing a public event, that they do no entangle church and state, and that they do not impermissibility advance or inhibit religion.

 Andrea Armstrong

Intercollegiate Sports: ◦ Muslim who petitioned for an exemption to wear long pants, a top with long sleeves and a scarf during games

 Tim Tebow Rule

Intercollegiate Sports: ◦ NCAA changed rules to prevent eye black messages entirely containing no words, logos. numbers or other symbols

 Air Force Academy

Intercollegiate Sports: ◦ Poem by the Fellowship of Christian Athletes asked to be removed by Academy officials.

 BYU

Intercollegiate Sports: ◦ Policy against Sunday competition  NCAA has attempted to accommodate by allowing competitor to compete prior to any competition scheduled on a Sunday.

 Team Chaplains

Intercollegiate Sports: ◦ Voluntary position, cannot promote any particular religious group or belief, and had to be committed to working with people of a variety of faiths.  Volunteer life skills assistant

◦ Doe v. Duncanville Indep. Sch, Dist. (1995)

Interscholastic Environment: Classic Cases:  Coach cannot lead prayer before or after games ◦ Different from graduation because one-time event

◦ Menora v. Ill. High Sch. Assn. (1982)

Interscholastic Environment: Classic Cases:  Jewish basketball players failed to prove the ban on headgear placed an undue burden on religious practices.

◦ Santa Fe Indp Sch. Dist. v. Doe (2000)

Interscholastic Environment: Classic Cases:  Prayer in public school over the loudspeaker before game violated Establishment Clause.

◦ ACLU of NJ v. Black Horse Pike Reg'l Bd of Ed. ('96)

Interscholastic Environment: Classic Cases:  Struck down policy that allowed class officers to poll graduating class re: prayer, moment of reflection, or nothing at all for graduating ceremony ◦ Sought to accommodate the preference of some at the expense of others

◦ Adler v. Duval County Sch. Bd. (1994)

Interscholastic Environment: Classic Cases:  Student's religious message at graduation ok because not school officials' choice.

◦ Jones v. Clear Creek Ind. Sch. Dist. (1992)

Interscholastic Environment: Classic Cases:  Student-led prayer at high school graduation which was approved by a vote of the students, and was non-sectarian and non-proselytizing was acceptable.

◦ Borden v. Sch. Dist. of Twp. of E. Brunswick ('08)

Interscholastic Environment: Contemporary Cases:  Community knew coach had lead prayer for 23 years, so reasonable observer would perceive as display of governmental endorsement of religion. ◦ Concern that adults (students/coaches) might use their authority of minor to make them pray

◦ Lassonde v. Pleasanton Unified Sch. Dist. (2003)

Interscholastic Environment: Contemporary Cases:  Principal disallowed parts of student's graduation speech that were heavily religious.  Ninth Circuit confirmed that presentation of speech in its original form would have amounted to coerced participation in a religious practice ◦ Unconstitutional violation of Establishment Clause

 Islam

Professional Sports: ◦ Athletes allowed to fast in observance of religion

 Judaism

Professional Sports: ◦ MLB players not playing on Jewish holidays ◦ Jets changed game start time to accommodate fans observing Yom Kippur, beginning at sundown.

 The Star Spangled Banner

Professional Sports: ◦ Refusal to stand or turning back to flag ◦ Elevation of love for country over love for God.

 God Bless America

Professional Sports: ◦ Since 9/11 commonly sung during 7th inning stretch ◦ NYY threw fan out who left seat to go to bathroom  Compelled patriotism  Changed policy to allow to go to bathroom

 Employment Law Issues

Professional Sports: ◦ Title VII requires employers to reasonably accommodate religious practices of employee unless undue hardship.

◦ Free Exercise Clause

Religion and Sports: Constitutional Background: First Amendment Focus:  Guarantees the individual the right to practice his or her religion

◦ Establishment Clause

Religion and Sports: Constitutional Background: First Amendment Focus:  Prohibits the government from establishing religion

◦ Freedom of speech

Religion and Sports: Constitutional Background: First Amendment Focus:  Team prayers constitute freedom of speech rather than religion? ◦ Protection of freedom of speech is limited in part by the Establishment clause  Many arenas and stadiums on college campuses are publicly funded ◦ Public prayer opposed due to Constitutional limits on state action which might endorse religion

 Equal Protection Clause

Religion and Sports: Constitutional Background: Fourteenth Amendment: ◦ States put preserve the freedom on religion established in the Bill of Rights

 Fourteenth Amendment

Religion and Sports: Constitutional Background: ◦ "...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

First Amendment Focus

Religion and Sports: Constitutional Background: ◦ "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech and or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance."

Endorsement Test  County of Allegheny v. American Civil Liberties Union (1989)

◦ The government cannot endorse, favor, promote, or prefer any religious belief or practice.  Invalid if government action creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion

Coercion Test  Lee v. Weisman (1992)

◦ The government may not coerce anyone to support or participate in religion or its exercise.  Player at a public school ceremony such as graduation violates the Establishment Clause when state officials control the religious exercise and make attendance and participation in it mandatory

Lemon test  Lemon v. Kutzman (1971) ◦ Excessive Entanglement

 Total separate of church and state not required.  Must invalidate a statute if it lacks secular legislative purpose. ◦ Primary purpose is secular ◦ Its primary effect must neither advance or inhibit religion ◦ Must not foster excessive entanglement with religion

Professional Sports

 No state action but attempt to demonstrate state action based upon use of public stadiums.