Fumbling the First Amendment

‘Kennedy v. Bremerton’ is stunningly bad jurisprudence
Joe Kennedy, the coach at the center of the recent Supreme Court ruling (CNS photo/courtesy First Liberty Institute).

I did not expect to be stunned by the Supreme Court decision in Kennedy v. Bremerton, the case decided in favor of the praying football coach at a public high school. I’m a religious person, a scholar of religion, and very comfortable with diverse forms of religious expression. I support rituals of civil religion, from “God bless America” in a grand presidential speech to brief prayers at my small town’s Memorial Day ceremony. Besides, having taught the previous school-prayer cases many times in my college courses, I thought I knew how this one would go. I was wrong. A public-school employee can now legally pray with students, on school property, during a school event. The Establishment clause of the First Amendment has been critically weakened.

The details of the case are widely available, though some aspects of the coach’s post-game prayers and speeches are in dispute. What is known for certain is that coach Joseph A. Kennedy had a tradition of praying with his football team in the locker room before games and giving post-game motivational talks that included religious expressions and prayer. At some point this resulted in a team huddle at the fifty-yard line, students kneeling around Kennedy while he prayed, addressing both his God and his team. After conflict in 2015 with the Bremerton, Washington, school district, he briefly discontinued the behavior. But then he returned to it and claimed that he would attempt to pray privately (though he believed it needed to be on the field after the game). This became a media circus, which included politicians and students from opposing teams joining the coach in prayer on the field. Ultimately, the coach was put on paid administrative leave.

After Kennedy sued, both the District Court and the Ninth Circuit Court of Appeals ruled in favor of the school district. But the Supreme Court granted certiorari, using the case as a means to strengthen the Free Exercise clause and weaken the Establishment clause. According to Douglas Laycock, a leading scholar of the First Amendment’s religion clauses, this ruling “appears to repudiate the very idea of government neutrality as a constitutional norm. Government is now free to promote religion, and apparently free to promote Christianity in particular, at least in the public schools and possibly much more broadly.”

 

As a parent, I’m annoyed. Teachers have substantial power over children. Coaches and other extracurricular leaders—choir and theater directors, club sponsors—often have even more influence, with little oversight. Parental authority recedes during children’s teenage years, as influence from peers and other adults increases. I absolutely do not want a teacher or a coach to exert religious influence over my kids in public schools. If a parent has the right to know what happens in social-studies class, do we not also have the right to know what prayers school officials are saying in front of our kids?

This ruling, unlike its precedents, ignores the social pressure that children feel from adults they trust.

This ruling, unlike its precedents, ignores the social pressure that children feel from adults they trust—coaches, perhaps, most of all. Justice Brett Kavanaugh understood the stakes, likely from his own experience as a coach. Though he ultimately voted with the majority, during oral arguments he expressed well-founded concerns about whether teenagers really have the freedom not to follow their coach for a team huddle after a game and listen to whatever the coach says there. Kavanaugh acknowledged the issue of favoritism too: the suspicion that “the reason Johnny’s starting and you’re not is he was part of the prayer circle.” Students might not be forced to pray, but the group psychology of a team means they are forced to listen, which school-prayer precedents had declared illegal.

As an educator, I’m anxious. Teachers and administrators already have more social issues to manage than they can handle. Previous court rulings had prevented public-school leaders from having to assess the religious expressions of faculty and staff. But now those guardrails are removed. The so-called “Lemon test” for the Establishment clause, named from Lemon v. Kurtzman, has proven difficult to apply consistently. But it did offer a key concept to think with: entanglement. To honor the Establishment clause, it said, there should not be “an excessive entanglement” of government and religion. The Lemon test was offered as a way to mediate challenges in schools, but now it has been overruled, according to both Justice Neil Gorsuch’s opinion and Justice Sonia Sotomayor’s dissent.

How is a public-school administrator supposed to decide which free exercises of religion by faculty and staff are acceptable during school events and on school property? Does each principal now have to establish his or her own religion policies and surveillance? Is that not the excessive entanglement that Lemon wanted to avoid? To be sure, public schools need to prepare children for pluralistic democracy, but it’s too much to ask each school to have its own policies about religious expression.

As a scholar, I’m incredulous. The ruling gets the facts of the case wrong and is more interested in hypotheticals. During oral arguments, Justice Samuel Alito was flustered by the accounts of the team prayers and actually said, “Forget about all of the complicated facts in this case.” He wanted instead to discuss a hypothetical privately praying coach and students who did not feel compelled to join—because that’s an easy case! Richard Katskee, arguing for the school district, kept trying to return the conversation to “the long history of [the coach’s] conduct and the expectation and the pressure on the students.” In the final ruling, the court relies on what Laycock flatly calls a “mischaracterization of the facts.” Laycock is one of the most religion-friendly scholars of First Amendment jurisprudence, but he excoriates Gorsuch’s description of the praying coach’s behavior as “a systematic gerrymander” of the evidence, “in which most of what actually happened didn’t count.”

To smooth the path toward the decision he wanted, Gorsuch equivocates on the key word “private.” Now, there is no doubt that public-school employees have a right to pray in private. One can even pray “privately” in public. Of course teachers can pray individually over their lunch, as in the false analogy Gorsuch provides. This happens every day. A coach can pray individually in the locker room, on the sideline, maybe even on the fifty-yard line. But the facts of the situation centered on a coach charismatically leading group prayer in the most publicly visible place: the center of the field immediately after a game. He wanted students to be there and to hear him; otherwise, he felt, the prayer didn’t count. There was ample evidence in the coach’s own behavior, reports of students and parents, and visual media. (Sotomayor’s dissent even included photographs.) What’s more, the coach did publicity about the prayers that Gorsuch calls private. The proper analogy would be a popular teacher standing up in the middle of the lunchroom and having everyone listen to a “private” prayer at lunch.

This ruling pretends to defend religious freedom for everyone in this increasingly diverse country, but in reality it will not encourage minority religious rights of free exercise.

Gorsuch uses other specious arguments. The most glaring fallacy occurs on a crucial point, when he rejects the claim that students felt pressure to join the prayers. Such social pressure was a key point in an earlier school-prayer case (Lee v. Weisman). According to the District Court, students at Bremerton had told their parents that they felt compelled to participate in the prayers and didn’t want to separate themselves from the team. Gorsuch calls this “hearsay,” though it’s on record. (And anyone who has been part of a cohesive group as a teenager understands it instinctively.) Next, the coach was suspended for such prayers and also for his “postgame religious talks”—delivered to the “captive audience” Gorsuch claims the coach did not have. After the suspension, Kennedy returned to games and prayed alone on the field, as the school district suggested. None of his students joined him, but other people did. Clearly, the reason his students did not join him is that he had just been suspended for this, and the students didn’t want to get in trouble or suspended from sports. But look what Gorsuch concludes from these facts: he uses the students’ lack of participation in the post-suspension prayers as evidence that they had not felt pressured to participate before the suspension. This is obviously faulty reasoning on probably the most important point of the ruling.

 

As an elected official, I’m furious. I believe in the American experiment, in the hopes of religious diversity and e pluribus unum. At our best, we hold majority rule and minority rights in tension, just as we have tried to hold the Establishment and Free Exercise clauses in balance. But the last time teacher-led school prayer was legal (more than sixty years ago), our country was over 90 percent Christian—near 100 percent in many areas. That number has dropped to around 70 percent, and it’s significantly lower in some parts of the country. This ruling pretends to defend religious freedom for everyone in this increasingly diverse country, but in reality it will not encourage minority religious rights of free exercise. Ask any non-Christian in the Bible Belt how they felt during (Christian) team prayer in high school.

Moreover, e pluribus unum needs careful curation during moments of civil religion, in order to avoid government endorsement of religion or coercion of citizens. Gorsuch defends his ruling in part by reference to Town of Greece v. Galloway, a recent case that permitted prayer before town-council meetings. But the analogy between an orderly civic meeting of adults and an unregulated spontaneous prayer session with children confuses more than it clarifies. When the town that I serve puts on a civic event like Memorial Day, serious attention is paid to the invitations to religious leaders for invocations and benedictions. We can create conditions for salutary interactions among diverse people. But we cannot give the floor to anyone to pray however they want at a government-sponsored event—whether a town parade or a high-school football game.

As a Catholic, I’m disturbed. Even though the current Supreme Court has been labeled as a Catholic takeover, this particular ruling brings nothing good to Catholicism. Catholics already have the largest network of private schools in the country precisely in order to educate children separately in our values, beliefs, and rituals. Moreover, the form of public prayer defended by this ruling is only one specific type of religious expression: the spontaneous, charismatic, words-only prayer associated with Protestant Christians.

A Catholic coach at a public school might call a “Hail Mary” pass at the end of a game, but he’s not going to lead the team in a rosary afterwards. A Greek Orthodox English teacher is not going to set up an icon in the corner of her classroom for prayer. Muslims and Jews will not feel emboldened to bring out prayer rugs or phylacteries to pray before students during school activities. Gorsuch does attempt one analogy to a Muslim teacher wearing a headscarf in the classroom, but he must know this is a category error. We have different kinds of legal analysis for religion in government monuments, symbols, funding, and prayer. It is forms of prayer at issue in this case, which is why Gorsuch makes no analogies to the actual ways that people besides Protestant Christians pray.

Finally, as a Bible-reading Christian, I’m embarrassed. I’m embarrassed for the Christian coach and the Christian justices. Catholic employees need Good Friday off for services, Muslims need private prayer breaks, and Jews need protection for Sabbath observance. But Biblical doctrine does not instruct Christians to pray in public places. Far from being a religious requirement, praying in public so that people can see you is literally the opposite of Jesus’ teachings. “Beware of practicing your piety before others in order to be seen by them,” he warned. Do not be “hypocrites” who pray “at the street corners, so that they may be seen by others.... But whenever you pray, go into your room and shut the door” (Matthew 6:1–6). This teaching is not obscure. It’s in the Sermon on the Mount. In a tragic irony, we thus have a Free Exercise case in which someone fought for and won the right to do what their religion explicitly teaches them not to do. In addition to causing problems for parents, schools, law, and government, this ruling is Christian hypocrisy in its purest form.

Michael Peppard, a frequent contributor, is a professor of theology at Fordham University and a Trustee of the Village of Pleasantville, New York.

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