Listening to the oral argument today in the case involving Coach Joseph Kennedy from Bremerton Wash. I can read the writing on the wall. A door is going to be opened in the solid wall that prohibits prayer in schools.
To me, the US Supreme Court’s conservative majority seemed to be searching for a way to rule in favor of the former high school football coach who lost his job for praying at the 50-yard line after his team’s games. Part of the problem are factual disputes over what the coach was accused of doing by the school district and the shifting rationales offered by the school district for disciplining him. The school’s original lawyers could have made a clearer and more consistent record.
Facts/Issues of the Case
According to one of Mr. Kennedy’s lawyers, his client had only sought to offer a brief, silent and solitary prayer of thanks after his team’s games. Earlier episodes, including prayers in the locker room, were not relevant, since it appears the school did not discipline him for it.
Richard B. Katskee, a lawyer for the Bremerton School District, said the school was entitled to require that its employees refrain from public prayer if students were likely to feel coerced into participating. But Katskee was challenged by the conservative justices, who said the district had initially argued that it could stop Mr. Kennedy from praying on a different ground: that the school would be perceived to be endorsing religion by allowing it. They suggested that the fear of coercion was a rationalization after the fact. There were lots of hypothetical questions but the worst for me was Justice Alito asking whether Mr. Kennedy would have been disciplined for protesting the invasion of Ukraine, climate change or racial injustice. There is no separation of Church and Speech, it’s Church and State. Also, there are clear tests in place for when a public employer can limit a public employee’s speech. (See Tinker v. Des Moines discussed below.)
A unanimous three-judge panel of the Ninth Circuit had ruled against Kennedy saying that school officials were entitled to forbid his public prayers to avoid a potential violation of the First Amendment’s prohibition of government establishment of religion. The full Ninth Circuit declined to hear the case over the objections of 11 judges. The two sides sharply disagreed about how to characterize Mr. Kennedy’s actions:
Judge Milan D. Smith, the author of the panel opinion, wrote that “Kennedy made it his mission to intertwine religion with football. He led the team in prayer in the locker room before each game, and some players began to join him for his postgame prayer, too, where his practice ultimately evolved to include full-blown religious speeches to, and prayers with, players from both teams after the game, conducted while the players were still on the field and while fans remained in the stands.”
In response, Judge Diarmuid F. O’Scannlain said the panel opinion had gotten the facts wrong: “It is axiomatic that teachers do not ‘shed’ their First Amendment protections ‘at the schoolhouse gate,’” he wrote, quoting Tinker v. Des Moines a 1969 SCOTUS decision that said a school could not discipline two high schoolers who wore black armbands to school in protest of the Vietnam War. “Yet the opinion in this case obliterates such constitutional protections by announcing a new rule that any speech by a public-school teacher or coach, while on the clock and in earshot of others, is subject to plenary control by the government.” But of course, the court did not say ANY speech, but that PRAYER was improper in a school setting. So let’s take a quick look at the history of the prohibition against prayer in schools.
History of Abolishing Prayer in Schools
Prayer, if organized by the school is largely banned from public elementary, middle and high schools by a series of Supreme Court decisions since 1962. Students may pray privately, and join religious clubs in after-school hours. Private and parochial schools are not covered by these rulings, nor are colleges and universities. Elementary and secondary schools are covered because students are required to attend, and are considered more at risk from official pressure than are older students and adults. The Constitutional basis for this prohibition is the First Amendment which requires that…
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
The first part of the amendment (“Congress shall make no law respecting an establishment of religion”) is known as the Establishment Clause of the First Amendment, while the second part (“or prohibiting the free exercise thereof”) is known as the Free Exercise Clause. It is the conflict between these two Clauses that keeps “prayer in school” in the courts.
Although each of these clauses originally applied only to the Federal, the 14th Amendment extended the scope of the entire First Amendment to all levels of government, including the state and local levels.
NY State tried to pass a “Regents Prayer” in 1955 during the height of The Red Scare and McCarthyism (which is also when the words “under God” were added to the Pledge of Allegiance). The prayer was recommended (but not required) for the school districts under its purview. The prayer was relatively short: “Almighty God, we acknowledge our dependence on Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.” The board stated that the prayer would “combat juvenile delinquency and counter the spread of Communism.” I am proud to say that it was parents in the Herricks School District (where my wife and I live and where we raised out 3 boys) who brought a lawsuit against the prayer and won their case in SCOTUS. That case, Engel v. Vitale, decided in a 6-2 vote in 1962, is the first SCOTUS decision on prayer in schools. Its ruling that it was unconstitutional for schools to compel prayer of any kind effectively ended prayer in public schools. Go Highlanders!!
There are some instances when religious freedom and secular rights have been temporarily balanced. Some administrations have introduced a “moment of silence” or “moment of reflection” in which a student may, if they wish to, offer a silent prayer. SCOTUS in Wallace v. Jaffree (1984) held that a moment of silence in schools for the purpose of individual prayer or meditation constituted a valid application of the Free Exercise Clause while a moment of silence for “the clear intended purpose of a state-approved devotional activity” constituted a violation of the Establishment Clause. Generally, if it appears that participants at a state-sponsored event are more likely to influence the State itself, courts may treat prayer as “legislative prayer.” If, on the other hand, the State is more likely to influence participants at its events, courts may treat prayer as “state-sponsored” prayer and thereby rule it unconstitutional.
It will all depend on whether the Court feels that students may feel compelled to participate and/or whether the coach doing it on the 50 yard line might seem like the school was endorsing Christian prayer over other prayer. Can you imagine the uproar if the coach were Muslim or Wiccan or wanted to pray in Arabic or conduct an animal sacrificial rite instead of a Christian prayer? If you can imagine the uproar, then you understand why this type of religious performance needs to be banned. Students idolize their coach; he controls their playing time; serves as a role model; and they curry his favor. An athiest or Jewish or Hindi high schooler would be put under tremendous pressure to stand by while his teammates join the coach on the 50 yard line for a prayer. The coach is free to pray silently to himself. He does not need to make a show of it on the 50 yard line. Doing that implies religious preference and ostracizes the other.
That being said, I fully expect this SCOTUS to land 6-3 on the side of the coach. They will likely do their best to limit it to the unclear facts of this case but it will open a door that has been closed tightly for decades.
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