The Supreme Court is in the process of remaking American “rights”: prohibiting abortion, allowing people to openly carry handguns in places where that was forbidden, and, in the case of Kennedy v. Bremerton School District, ruling that a public high school football coach who prayed on the 50-yard line after games had a Constitutional right to do so. The vote was, of course, 6-3, the same vote as when the Court allowed taxpayer money to be used to buy vouchers to send kids to religious schools. The Bremerton opinion was written by Justice Gorsuch, and can be found, along with the dissents, here. (Sotomayor’s dissent is well worth reading.)
Given the religious and Catholic nature of much of the court, and its strong conservative bent, it seems likely we’ll see more disassembling of the wall between church and state that was dictated by the Establishment Clause of the First Amendment—and by its intellectual author, Thomas Jefferson.
This Wall and the Court’s effect on it is the subject of Cathy Young‘s new piece in The Bulwark (a more or less centrist site) which you can read by clicking the screenshot below. I’ve always found Young thoughtful and sensible, and so I was keen to read her take. This time, though, I don’t really agree with it, as she seems pretty sanguine about the increasing intrusion of religion into government activities.
If you read Sotomayor’s dissent—which has photos, something I’ve never seen in a published decision—you’ll know the privotal issue: were coach Joseph Kennedy’s midfield prayers a personal act, or was it a demonstration that could coerce players, students, and the public into joining him, a behavior that does violate the First Amendment? Six Justices said “no violation,” but the pictures and testimony are pretty convincing otherwise, and back Sotomayor’s words in her dissent:
[Kennedy’s] prayers were intentionally, visually demonstrative to an audience aware of their history and no less captive than the audience in Santa Fe, with spectators watching and some players perhaps engaged in a song, but all waiting to rejoin their coach for a postgame talk. Moreover, Kennedy’s prayers had a greater coercive potential because they were delivered not by a student, but by their coach, who was still on active duty for postgame events
The six members on the other side of the court, religious to a man (and one woman), didn’t seem to have any problem with this. But I do, for if the documentation in Sotomayor’s dissent is correct, there was not only coercion, but a deliberate attempt by Kennedy to mix his Christianity and his public-school football job. It’s a violation of the First Amendment.
Cathy Young does make a point that the wall can be built too high, but she doesn’t seem to be particularly bothered by Bremerton:
And yet before one dismisses Kennedy’s complaints out of hand, it is worth remembering that there is a history of aggressive and illiberal efforts to purge anything with religious themes from the school environment under a misguided reading of strict church/state separation. Thus, high school valedictorians have been forbidden to insert even brief religious references in their graduation remarks, despite the fact that they are not authority figures and are platformed along with many other speakers.
In one particularly ludicrous 1996 incident in New Jersey, a first-grader named Zachary Hood was barred from participating in a classroom exercise in which each student read to the class a short text of his or her choosing because the text he had chosen came from a children’s book of Bible stories (an account of the reunion of estranged brothers Jacob and Esau which made no mention of God or miracles). The federal courts at the time sided with the school district, ruling that to allow Zachary to read the story out loud in front of the class would amount to an impermissible endorsement of the Bible by the public school. However, Zachary and his mother won a settlement in a related case in which a drawing he made was removed from a display of the students’ Thanksgiving art because it was religiously themed. As the Becket Fund, which litigated on Zachary’s behalf, notes on its website, the case resulted in a Department of Education guidance in 2003 stating that “students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions.”
Young is correct here: it’s surely foolish to omit all mention of religion or God in schools: after all, it’s part of our culture, and people need to learn about comparative religion. What cannot happen is that schools cannot endorse one religion—or religion in general, force students to participate in religious exercises, or coerce them to express or adhere to religious sentiments. And what Young describes above doesn’t fall into those categories.
But Young also quotes legal analyst Jeffrey Rosen:
“In an era when religious identity now competes with race, sex and ethnicity as a central aspect of how Americans define themselves, it seems like discrimination—the only unforgivable sin in a multicultural age—to forbid people to express their religious beliefs in an increasingly fractured public sphere.” In that sense, Kennedy v. Bremerton continues a longstanding trend.
True: religion is part of many people’s identity. And the valedictorian above wasn’t doing anything wrong by expressing her belief. But coach Kennedy, who had a long history of coercive prayer in the locker room before he started praying after games, was being coercive, for some testimony says the students felt coerced, and Kennedy invited both his team and their opponents to participate in prayer. If you were on his team, you’d more or less have to. Both that and the “mob scenes” described by Sotomayor go far beyond the trivial incidents described by Young above.
There’s a very good reason to keep that wall of separation high, for there is no ideology so oppressive when it gains power as religion (in fact, that’s what we’re seeing on the Supreme Court now). Religion is arguably the most divisive of human personal beliefs, and that’s why Jefferson was so proud of writing The Virginia Statute for Religious Freedom—the precursor of our First Amendment. He was so proud of it, in fact, that it’s one of the three things he wanted on his gravestone (and NOT the presidency):
In the end, after adding religion to the mix of identity politics, and noting that this creates bad behavior by both advocates and opponents of church-state separation, Young winds up with a rather tepid conclusion:
Does Kennedy v. Bremerton take us into new territory when it comes to potential religious coercion in schools? Interestingly, Millhiser and Volokh, who assess the case very differently, agree on one thing: that its impact as precedent is uncertain because the majority opinion relies on the least controversial (from a First Amendment perspective) version of the facts.
That said, it seems all but certain that the ruling will open the door to other lawsuits from teachers and other public employees who will want to challenge whether prayer or other kinds of speech are protected, and in turn from students who might feel more clearly coerced by an authority figure than did the students in this case. The coming years may bring many more opportunities to see to what extent the current Court’s conservative majority has a genuine interest in protecting religious liberty.
Well, when you add that to the school voucher decision forcing taxpayers to subsidize religious education, I think the impact of the courts on the First Amendment—and that includes this case—is almost certain to be dire and corrosive. Of course we’ll have more lawsuits, as more people can climb over the wall that the Court has lowered, but it’s hard for me to believe that Young doesn’t think the current Court’s “conservative majority has a genuine interest in protecting religious liberty.”