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Constitutional Law

Coming Soon to a Public School Near you: PRAYER!

The Supreme Court handed down a landmark decision in Kennedy v. Bremerton School District on Monday, overruling Lemon v. Kurtzman, a 1971 case laying out how the government must keep its distance from religion. Just another long-standing precedent thrown out by the 6-3 conservative majority that is rolling back, at break neck speed, protections and rights long fought for and won.

In Kennedy, the Court held that it was a violation of the Free Exercise Clause of the First Amendment for a public school to discipline a football coach who would pray at the 50 yard line following home games. The Court held that the coach’s prayer was a private, personal event and therefore not an establishment of religion in violation of the Establishment Clause of the First Amendment.

But the decision is based on direct misrepresentations of fact and a narrow view of the Lemon v. Kurtzman test which has long been used to balance the effect of the two “religion clauses” in the First Amendment.

First of all, Judge Gorsuch, who wrote the majority opinion, blatantly distorts the most important fact of the case: the nature of the prayer. He repeatedly claims that the coach “offered his prayers quietly while his students were otherwise occupied.” This is a lie. Or as the dissent more gently puts it Gorsuch “misconstrues the facts.” :

The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited
others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history. The Court also ignores the severe disruption to school events caused by Kennedy’s conduct, viewing it as irrelevant because the Bremerton School District (District)stated that it was suspending Kennedy to avoid it being viewed as endorsing religion.

Coach Kennedy incorporated “motivational” prayers into his coaching. Eventually, these prayers turned into public, after-game sessions, where both Kennedy’s players and players on the other team would kneel around Kennedy as he held up helmets from both teams and led students in prayer.

In this picture, from the school district’s Supreme Court brief, coach Joseph Kennedy holds one of his prayer sessions for public school students.

After games, Kennedy would also walk out to the 50-yard line, where he would kneel and pray in front of students and spectators. Initially, he did so alone, but after a few games students started to join him — eventually, a majority of his players did so. One parent complained to the school district that his son “felt compelled to participate,” despite being an atheist, because the student feared “ he wouldn’t get to play as much if he didn’t participate.”

When the Bremerton school district learned of Kennedy’s behavior, it told him to knock it off — though it did offer to accommodate Kennedy if he wanted to pray when he wasn’t surrounded by students and spectators. And Kennedy did end some of his most extravagant behavior, such as the prayer sessions where he held up the helmets while surrounded by kneeling students.

But then he went on a media tour, presenting himself as a coach who “made a commitment with God” to outlets ranging from local newspapers to Good Morning America. And Kennedy’s lawyer informed the school district that the coach would resume praying at the 50-yard line immediately after games without offering an attempt at any accommodation.

At the next game following this tour, coaches, players, and members of the public mobbed the field when Kennedy knelt to pray. A federal appeals court described this mob as a “a stampede” and the school principal said that he “saw people fall” and that, due to the crush of people, the district was unable “to keep kids safe.” Members of the school’s marching band were knocked over by the crowds.

And, contrary to Gorsuch’s repeated claims that Kennedy only wanted to offer a “short, private, personal prayer,” Kennedy was surrounded by players, reporters, and members of the public when he conducted his prayer session after that game. We know this because Justice Sonia Sotomayor includes a picture of the scene in her dissenting opinion:

Seems like a nice quiet private prayer, no?

That is not the only game of Twister played by Gorsuch. He also distorts the history of Lemon v. Kurtzman the long-standing precedent and guideline for balancing the religious rights of public employees and students with the Establishment Clause. In Lemon the Court attempted a “grand unified theory” for assessing Establishment Clause claims That approach called for an examination of a law’s purposes, effects, and potential for entanglement with religion. In time, the approach also came to involve estimations about whether a “reasonable observer” would consider the government’s challenged action an “endorsement” of religion. Gorsuch then claims that “this Court long ago abandoned Lemon and its endorsement test offshoot.” But again, as Sotomayor points out that statement is false. There was never a rejection of Lemon she stated, just a rejection of its application to certain cases:

All the Court in [the cited cases], however, was that application of the Lemon test to “longstanding monuments, symbols, and practices” was ill-advised for reasons specific to those contexts.

Instead of Lemon, the SCOTUS majority sets forth this test:

The Establishment Clause must be interpreted by “‘reference to historical practices and understandings. [T]he line’” that courts and governments “must draw between the permissible and the impermissible” has to “‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’”

The majority treat the Founding Fathers as demi-Gods, infallible, and uncontestable. These are the same men who of course wrote that slaves were to be counted as 3/5s of a person; denied women the right to own property and to vote; owned slaves themselves, etc etc. To hold that our current position on public prayer must meet the norms of men from 1789 is ludicrous.

This Court has shown a complete contempt this month for precedent, we know that. But this decision shows the majority’s willingness to do so with convoluted explanations that are not supported by law. This decision will have a tremendous impact on religion in public schools -even though we as a society have solved this issue long ago.

History of Prayer in Public Schools

I am proud to say that the original school prayer case Engel v. Vitale arose out of the Herricks (Long Island) School District, which is where my wife and I raised our three boys and where we still live.

In 1962 the Board of Regents of New York approved a nondenominational prayer for their morning procedures.  Students would be given the choice to be excused for the morning prayer if they chose to.  The prayer was twenty-two words that went as followed:

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen.

The case was brought by a group of families of public school students of varying religions and degrees of belief.

In a 6–1 decision, the Supreme Court held that reciting government-written prayers in public schools was unconstitutional, violating the Establishment Clause of the First Amendment. What’s interesting about the case is that the Court decided it using historical precedent.

In his opinion for the Court, Justice Black explained the importance of separation between church and state by giving a lengthy history of the issue, beginning with the 16th century in England. He noted that prayer is a religious activity by its very nature, and that prescribing such a religious activity for school children violates the Establishment Clause.

The Court rejected the defendant’s arguments that students were not asked to observe any specific established religion, that the traditional heritage of the nation was religious, and that the prayer was voluntary. The Court held that the mere promotion of a religion is sufficient to establish a violation, even if that promotion is not coercive. The Court further held that the fact that the prayer is vaguely-enough worded not to promote any particular religion is not a sufficient defense, as it still promotes a family of religions (those that recognize “Almighty God”), which still violates the Establishment Clause.

Here, while not explicitly endorsed by the school, Kennedy was an important figure in the school, a teacher, a coach and the leader of the football team, and later a minor celebrity in the community because of his performative prayer. Like the prayer in Vitale v. Engel, children couldn’t help but feel there would be consequences if they did not participate. That consequence was not just that they may not get playing time, but that they would be ostracized by their peers. In 2000, in the case of Santa Fe Independent School Dist. v. Doe, SCOTUS ruled that a prayer said by a student over the loudspeaker prior to home football games violated the Establishment Clause and cited those same concerns. The Court concluded that the football game prayers were public speech authorized by a government policy and taking place on government property at government-sponsored school-related events and that the District’s policy involved both perceived and actual government endorsement of the delivery of prayer at important school events. Such speech is not properly characterized as “private,” wrote Justice Stevens for the majority. The only distinguishing fact from Santa Fe and Kennedy is that it was not broadcast over the school address system.

It is a near certainty that, relying on this new SCOTUS precedent, many coaches, teachers, and administrators will try to push the envelope and engage in their own “private” prayers at various school functions. More children will have to feel the pressure of “fitting in” and perhaps be bullied or ostracized for not being like the others. And if the cases are brought to court, they may end up before a SCOTUS bench that apparently has no issue with eroding the line between Church and State.

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