Tebowing and the Constitution

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Category: First Amendment, Public, Religion & Law, Sports & Law, U.S. Supreme Court
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Much has been made of Broncos quarterback Tim Tebow’s outward expressions of his Christian faith, especially his practice of kneeling in moments of prayer—“Tebowing” as it is now called—after touchdowns, some of them admittedly a bit miraculous.

A recent issue of Time magazine, for example, included an article on Mr. Tebow, his faith, and the Tebowing phenomenon, with pictures of people in different locations “Tebowing Round the World.” Fox Sports’ website similarly offers a gallery of athletes and celebrities Tebowing in various settings. And last month, the Wall Street Journal ran an article entitled “Tim Tebow: God’s Quarterback,” observing that his “combination of candid piety and improbable success on the field has made Mr. Tebow the most-discussed phenomenon of the National Football League season.”

So, what is the possible relationship between Tebow-like conduct and the Constitution? As long as the faith expressions of Tim Tebow and his imitators don’t implicate the government, then the Constitution, which generally concerns only the government’s actions, is not triggered. Whether non-governmental entities such as the NFL or the Broncos wish to place limits on Tebowing—e.g., as “excessive celebration” prohibited by NFL Rule 12 § 3 art. 1(d)—is a matter that could potentially infringe players’ rights under federal or state civil rights statutes. But neither the First Amendment to the Constitution’s ban on religious establishments nor its guarantee of religious free exercise would come into play.

The conduct of Tim Tebow, alas, has not been confined either to Tim Tebow or to non-governmental settings. At least two public school students in New York, for instance, were suspended last month after Tebowing in a school hallway, allegedly for causing an obstruction. Whether or not their First Amendment speech and religion rights were violated is unknown—have all hallway obstructions led to such punishments?—but there can be no doubt that Constitution applies to the school’s actions.

Nor has Tebow-related conduct been confined to students. In Columbia, South Carolina, a high school coach seemingly encourages his athletes to be religious in the manner of Tim Tebow. That is entirely fine as a sentiment, but if it translates to pre- or post-game prayers led or promoted by the coach, then the Establishment Clause would almost certainly make such conduct unconstitutional. The same might even be true of Tebow-like touchdown prayers by players if encouraged, let alone directed, by the coaching staff.

To be sure, it was in the context of a public high school football game that even student-initiated and student-led prayer, when using the school’s public address system on school property and under school faculty supervision, was held by the U.S. Supreme Court to be unconstitutional under the Establishment Clause. Although the Court noted that “nothing in the Constitution . . . prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday,” it further remarked “the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.”

In summary, Tebowing or other Tebow-like conduct may in some instances be protected by the Constitution’s First Amendment, while in others it may be circumscribed if not absolutely prohibited. Such calls, of course, will ultimately be made not by zebra-striped referees on the field of play but by black-robed judges in a court of law, with no set limit on either challenges or the use of instant replay footage.

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