“And David put his hand into his bag and took from it a stone and slung it, and struck the Philistine on his forehead. And the stone sank into his forehead, so that he fell on his face to the ground.”

Anyone who has seen the movie Hoosiers will remember this scene where the coach of the small town and over-matched Hickory Huskers watches while his team is lead in prayer by the team chaplain right before they slew the big city Indiana-South Bend high school team dramatizing what in real life has gone down as one of the biggest upsets in high school athletic history.  Even in deep in the heart of ultra-religious Baptist country Coach Norman Dale must have known what was coming down the road by not joining in on pre-game prayer.

East Brunswick High School football coach Marcus Borden must not have seen Hoosiers. The coach has asked the court to review a ruling from the U.S. 3rd Circuit Court of Appeals in April in which an appeals panel reversed a 2006 ruling that permitted Borden to silently bow his head and “take a knee” with players as the team prayed. The judges said the school board’s policy barring school staff from joining in student-led prayer was constitutional. Coach Borden later quit the team rather than be prohibited from participating in team prayers.  Classic Establishment Clause separation of church and state issue. Should the Supreme Court take a new look at this issue? It is an issue that has support on both sides.  The American Football Coaches Association held its annual convention  last month, and filed a petition supporting Borden’s case.  Its board also voted unanimously to support Borden.   The Americans United for Separation of Church and State, a civil liberties watchdog group based in Washington, D.C is lined up for a goal line stance on the other side.

Can the coach add his prayers to the mix for Jesus to help kick the game winning field goal?  If you look at previous Supreme Court decisions, it appears that Jesus will shank this one “wide right” when the Supreme Court rules.

In 2000, the court ruled that hat a Texas public school district policy permitting “student led” prayer at high school athletic events was unconstitutional, and violated the separation of church and state.  The case was Santa Fe Independent School Dist. v. Doe.  In finding that such a policy violated the Establishment Clause of the First Amendment the court stated:

“School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community,”

Lower federal courts have also found that it is also unconstitutional for a school official, including a coach, to initiate or lead a team in prayer.

As we sit here today the law of the land is that the only type of  public school prayer that is permitted is voluntary prayer presented and led by students without official permission or sanction may be constitutional, provided that it is not coercive in any way.  Duncanville Independent School Dist., v. John Doe, 994 F. 2d 160 (5th Cir. 1993).  If coach Bowden stood there and prayed quietly to himself(which he certainly had the option to) ,no harm no foul and Touchdown Jesus is back on the playing field.  By participating even passively in the voluntary team pre-game prayer, it certailny will be looked at as a public “sanctioning” of the activiity by a school official and therefore violative of the Establishment Clause of the First Amendment. In my opinion it is not even a close call.  My prediction is that the Supreme Court will refuse to hear his appeal and Jesus will have to have to punt.

The Supreme Court will decide whether to hear the case within the next two weeks.  Will Jesus be “wide right”?

A lot is being made of the recent hanging of Sarah Palin in effigy.  Fox News is arguing that if the same thing was done with Senator Barack Obama it would be a hate crime.  Senator Obama was hanged in effigy not long ago.  It generated publicity but nowhere near what we are seeing on the Palin hanging.  Interestingly it was done at a private Quaker founded college. It was investigated by the Secret Service, FBI and local authorities.  While many found it offensive no criminal wrongdoing was found.   Here is how  hate crimes are generally defined in states that have laws against them:

Hate crimes are criminal acts or attempted criminal acts against an individual or group of individuals because of their actual or perceived race, color, religion, ancestry, national origin, sexual orientation, gender, or disability.

Without the intent required to be a hate crime and everything else being equal, I have no problem with effigy hangings for Palin,  Obama, or any other political candidate as long as the intent is political expression.  Hanging in effigy has been a part of political expression and dissent in America pre-dating the Revolutionary war.  I feel safe in stating that the late King George has been hung in effigy more times than George Bush, Barack Obama or Sarah Palin will ever be.  Effigies of President Bush  and other presidents including Abraham Lincoln have been hung and burned throughout history. You have to look at the circumstances and context of the act.  In Palin’s case  the motivation may have been simple Halloween art.  For a effigy hanging to be a hate crime you generally have to prove that the underlying act was criminal AND that the motivation behind it was the person’s race or other protected minority status. This can be very difficult to prove without an clear criminal act attached. There are countless instances throughout history when effigy hangings and similar activities were clearly race and hate related.  Most recently we witnesses the noose hangings surrounding the Jena 6. Those were not political statements. They were statement of racial hatred.

With regards to the Holloween Sarah hanging and any future hangings of political expression, if local officials are able to pull up some local statute relating to community asthetics etc. as a pretext to meet the underlying criminal act requirement I believe that if challenged, they would lose on First Amendment Grounds. The First Amendment potects the offensive as well as the offended.  Just ask Larry Flynt and Jerry Falwell. Let Sarah hang!

We are protected from unwanted  sexual behavior in our place of employment.  We have the right to be free of unwanted sexual advances,  sexual innuendo,  demands for sex in exchange for job advancement or keeping a job. The list goes on and on. There is an entire body of law and several Supreme Court decisions that give  us that protection and tell us what we should do if we are harassed.  If you are to believe two New York Police Department(NYPD) male police officers we are also protected from unwanted crotch itch.  That’s right. if your co-worker does more ball handling than Steve Nash you can get him fired and  sue for sexual harassment.

A gay NYPD lieutenant was recently found guilty by NYPD of sexually harassing two male sergeants.  Lt. Kieran Crowe, a 23-year NYPD veteran, was  initially suspended 60 days without pay for rubbing his crotch, simulating masturbation and wiggling his tongue at the male sergeants.  Crowe admitted that he may have scratched his groin area, but said it was because he suffered from “jock itch”. He even had a note from his doctor.  The “jockered” cops have now filed a federal sexual harassment suit against Crowe.  Crowe’s attorney stated:

“Does it make sense that this gentle, homosexual man would seek to coerce and seduce two large, burly heterosexuals?”

Believe it or not “crotch grab” harassment is not unusual. It unfortunately is a common gesture used by  neanderthals to reach a higher sexual and intellectual plane.  What is the message being sent with the “grab”?  If the message is, “I shouldn’t have slept with that girl last night” then the intent is probably not to sexually harass. The guy should get some powder and a penicillin shot.  In Crowe’s case however he was allegedly doing it whenever he was in the presence of these two ‘jockophobic” sergeants and was also moaning loudly whenever he scratched.

Should this “crotchety” police officer been canned?  There are those who would argue that “crotch-grabbing” has actually become the in thing among the Hollywood elite as a sign of respect for co-workers.  This trend was allegedly started by Oliver Stone and Josh Brolin during the filming of the movie “W“.  Brolin insisted his co-stars break up serious scenes by flipping off the director and grabbing their crotches.  I wonder if Stone and Brolin will be called as experts in crotch grabbing at Crowe’s the civil trial.

I suspect that Crowe’s dismissal will be overturned and he will be reinstated to the NYPD.   Hopefully minus his jock itch.

Motto of story?  If it doesn’t itch you must acquit.

Sears Holdings(SHLD) chief Eddie Lampert just announced that they would be closing 12 under-performing stores outside of Illinois.  Sears continues to plummet in almost every possible metric. The stock has dropped from a 52 week high of 139  to its current trading price around 50 plus or minus a few points.  This translates to a market cap valuation drop in excess of 4 billion dollars. That’s the good news.  As we approach what should be on of the biggest holiday “non-spending” seasons since the Great Depression and an expected demand plunge in the retail appliance sector, the plummet should continue.  IMHO we will see Sears trading in the 30-40 range bye the end of the year.

The most recent stock plummet while more dramatic than others has followed the trend of most other retailers in these troubled economic times.  Word on the street is the Sears actually puts itself in as better positioned than the likes of Target and Walmart due to a hefty cash on hand surplus.  That is the biggest slight of hand since Houdini.   A cash surplus hoarded while your company goes under is not a positive asset.  Sooner or later, sales do not keep up with expenses and that cash will have to be used.  You can only close so many stores.  Pretty simple math.   Walmart, Target and Loews are well run companies.  People who shop there will continue to shop there even if they are going less frequently . They are not going to suddenly decide to switch to a poorly run Sears with outdated stores and a less desireable inventory with the exception of a very few brand that inspire loyalty such as Craftsman.  The Sears free-fall is only accelerated.  Not only do they have to deal with  reduced foot traffic as a result of the current economy, they are still the same poorly run company they were before the Wall Street meltdown. The same retail decision making fundamentals will continue to plague them apart from these troubled times.

Word on the street is that Sears is locked in on their lines of credit(although I hear they had one reduced). If this is true Lampert may be able to continue to sit on his cash surplus while spending none of it to improve infrastructure and most importantly get someone in who knows retail and will actually be allowed to speak out with authority to get things done.  If it is not true and credit continues remain  tight throughout the holiday season, we can expect Eddie Lampert to have to part with a lot of that cash surplus to keep things going.  I also find it interesting that guys like TheStreet.com’s Jim Cramer have consistently spoken positively about  about Sears.  Have we been looking at the same company?  Jim seems to consistently fall back on Sears strong balance sheet and their EBITDA.   I am not sure what that has to do with sound company fundamentals going forward.  It is no secret that  Jim has  been “in the tank” for Sears.  His friendship with Eddie Lampert dates back to their Goldman Sachs days.   This in a vacuum does not mean Jim can not be objective but it does get to the point where you look at his Sears analysis and recommendations and say WTF.

There is a huge differene however between the drops of Sears as compared to Walmart, Target and some other retailers.  While they will also suffer as a result of depressed spending and severely tightened credit, they are still fundamentally well run companies.  Even in these ridiculously tight credit enviorment, while they may pay a little more for their money, the banks will still renew their lines at comparatively favorable rates.  Their custmoers may show up less frequently but they will still show up.  Business will continue as usual. Sears will continue to lose market share through these tough times.  Credit will be harder to get. When they do get it the money will be more expensive.  Eddie will be forced to use cash surplus.   When the cash is gone will there even be a Sears?