Another federal appellate court has struck a blow against faith in public schools. The Third Circuit Court of Appeals, which presides over Pennsylvania, New Jersey and Delaware, held that a football coach may not even bow his head in respect as his high school football players lead a pre-game prayer.

Marcus Borden, an award-winning coach who courageously defended prayer in this context, has also been ordered not to “take a knee” in respect of prayer. In Borden v. Sch. Dist., 2008 U.S. App. LEXIS 8011 (3d Cir. Apr. 15, 2008), the Third Circuit affirmed an anti-prayer policy of a school district in East Brunswick, New Jersey. The Court held that “based on the history and context of Borden's conduct in coaching the EBHS football team over the past 23 years, Borden is in violation of the Establishment Clause when he bows his head and takes a knee while his team prays.”

Judge D. Michael Fisher wrote the decision for the Court, attempting to confine his ruling to situations where the coach had a long history of leading the players in prayer. Coach Borden had been involved in his players’ prayers since he began coaching the team back in 1983. In 2005, the school district told him to stop participating in the prayers.

Judge Theodore McKee wrote in concurrence that not only should Coach Borden be prohibited from bowing his head due to his participating in prior prayers, but new coaches should also be barred from such symbolic support of prayer. Judge McKee emphasized that he did not view the ruling to be limited to instances whether the coach had historically supported prayer. Judge Maryanne Trump Barry concurred separately with an opinion suggesting that bowing a head and taking a knee can be signs of respect without any endorsement of religion. She praised Judge Fisher’s lead opinion, giving it a 2-1 margin of victory in the case.

Ronald Riccio, an attorney representing Borden, announced his intention to appeal this decision to the U.S. Supreme Court: “The Supreme Court should hear this case because so far, there have been four judges who rendered an opinion that’s different from the other’s decision. There are decisions around the country that go both ways.” But the Supreme Court accepts only about 1% of the cases presented to it for review. Only if Justice Anthony Kennedy, who is the swing vote on Establishment Clause issues, wants to overturn this verdict will the Court likely grant certiorari to hear this case.