SCOTUS, Culture Warriors, and School Prayer

One of the cases SCOTUS heard this week is Kennedy v. Bremerton School District, which according to SCOTUSblog is about “(1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.”

However, according to Mark Joseph Stern at Slate, this case is based on is built on “a series of brazen lies designed to depict the plaintiff, Coach Joe Kennedy, as a victim of anti-Christian discrimination—and to erase the students whom he coerced into prayer.”

The plaintiff’s lawyers insist that he was fired from his job as a football coach for engaging in “quiet, private prayer” at the 50-yard line after games. The extensive record developed in the district court tells a different story. It demonstrates that Kennedy formed prayer circles with team members after each game, leading the students in audible Christian prayer while in the midst of his formal duties. When the school district asked him to pray privately instead, he claimed he had been persecuted for his religious exercise.

Kennedy hired far-right lawyers who threatened legal action against the school district, transforming the postgame ritual into a media spectacle. Eventually, students began racing onto the field to join the prayer circle, creating a 500-person stampede that injured multiple people. Put simply, there was nothing “quiet” or “private” about Kennedy’s proselytization. (Also, he wasn’t fired; he was placed on paid leave.)

Yeah, that’s way different. Stern goes on to quote a number of former football players who say they did feel coerced into joining the prayers, and the prayers made them uncomfortable and did not reflect their personal religious views. And that, children, is a violation of the establishment clause on its face. Lower courts hearing this case sided with the school.

A number of news stories about this case take the coach’s version of facts at face value, and the facts are essential to understanding if the First Amendment is violated or not. The establishment clause of the First Amendment forbids Congress (and through the Fourteenth Amendment, state and local government also) from “establishment of” religion, which means recognizing an official state religion or favoring one religion over another. The establishment clause does not forbid acts of religious expression on public school or other government property; it forbids the government itself, or its elected officials or employees, from using the power of government to promote religion or coerce people into taking part in religion if they don’t want to.

It’s important to understand that these “religious freedom” cases often are not really about protecting the free exercise of religion against secular, anti-religion oppressors. They are about whether one particular religious tradition can get away with special privileges over other religious people and the non-religious. Back to Mark Joseph Stern:

One member of the football team during Kennedy’s tenure, who came forward under a pseudonym for fear of retaliation, attested that he refused to bow his head because Kennedy’s prayers did not align with his own beliefs. He was then “persecuted” for failing to conform, treated poorly by the coaches and permitted to play only because of his talent on the field. The experience still haunts him, as well as others who felt queasy about the indoctrination they faced at school. These players, the student said, “would rather forget about that time of their life.”

There was another case involving prayers and football games back in 2000, which was Santa Fe Independent School District v. DoeIn that case, the school district had a long-standing practice of having a student deliver a prayer on the school’s public address system before every football game. The student delivering the prayer was chosen by vote of the student body. The suit seeking to stop the prayers was not brought by atheists but by Catholic and Mormon parents who objected to the content of the prayers and didn’t want to feel coerced into taking part in them. The nature of the parent’s objections was rarely reported accurately in news stories, as I remember, and Christian conservatives who were not Catholic or Mormon persisted in calling the decision to stop the prayers anti-Christian and anti-religion.

The school district argued that the nature of the prayer and the person delivering it were chosen by vote of the students, not the school, so that made it okay. But as Justice Stevens said, “this student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority.” In other words, it didn’t protect an individual’s right to not be coerced into religious expression. The Court held (6-3) that individuals on school property can pray all they want to, but a prayer mandated by the school district and delivered over the school’s public address system at a school event made it the school’s religious expression, which was out of bounds. The election mechanism didn’t magically turn the school’s speech into private speech.

BTW, the three dissenters in the Santa Fe case were Renquist, Scalia, and Thomas. And we’ve still got Thomas.

See also my post from 2006 about what happens when an evangelical family goes to a public high school football game and must sit through a pre-game invocation that is not Christian at all, but Buddhist. Hilarity ensues.

Coercion is not necessarily an explicit thing. Children of minority religions, or no religion, can be subjected to all kinds of peer pressure and bullying by children of the majority religion, even if the school itself is trying to not be coercive.

But then there’s the current Court, which is expected to side with the coach. At Harvard Law Today, law professor Sanford Levinson basically says this is not a case that past courts would have bothered with.

So, why in the world did the Supreme Court take this case? I think it’s because there are now at least four justices — that’s all it takes for the Court to take a case — who are active soldiers in the culture wars and who are on the side of anybody with a religious claim against the secular authorities. My hunch is that there are five justices — and maybe six, with Chief Justice Roberts — who will accept some version of the coach’s story and say that he wins. And this will be billed in some circles as yet another way that the Supreme Court is protecting us, that is, religious believers, against their secular oppressors.

In other words, a decision in favor of the coach won’t be a decision based on the Constitution and precedent, but on the biases of the majority of the justices. And then expect most public schools in the South and Midwest, and probably other places, to start reading explicitly evangelical prayers over the loudspeakers at football games again. Give these people an inch, and they’ll take ten thousand miles.

See also The GOP Is No Longer a Party. It’s a Movement to Impose White Christian Nationalism by Jennifer Rubin at WaPo. “Our political problems are significant, but they are minor compared with the moral confusion that is afflicting the millions of White Christian Americans who consider themselves victims,” she says.

And see Prayer on the Field Should Not Be a Problem from an Islamic website called Ummah Sports. The person who wrote this doesn’t quite grasp the Constitutional issues and the distinction between private and government speech. But he includes this photo of Algerian soccer players at the 2014 World Cup:

This is lovely, but one suspects a lot of American evangelicals would disagree.

13 thoughts on “SCOTUS, Culture Warriors, and School Prayer

  1. I'm guessing the coach, for all his evangelical fervor, has not read Matthew 6, where Jesus tells his followers to pray in private rather than in public for all to see after the manner of the Pharisees.

    When I taught HS government, my go-to on this issure was always "Would you feel comfortable if a Muslim student offered a prayer to Allah?" That one separated the thinkers from the feelers (so to speak).

  2. The six Dominionists on the Supreme Court have made it clear that "Freedom to impose my religion" is of higher validity than any other words in the Constitution.  For now 'Christianity' is the only acceptable 'my religion'.  They will side with the coach and the facts of the case will have as little relevance as "A well-regulated militia" does to the 2nd Amendment.

    Religion is like a penis.  Some people have one and some people do not.  It is okay to be happy with it.  It is okay to be proud of it.  The problem is when people wave it in your face.

  3. That's what I love about Zen: no point in pontificating.

    Right: Matthew 6:5-6:

    When you pray, do not be like the hypocrites, who love to stand and pray in the synagogues and on street corners so that others may see them. Amen, I say to you, they have their reward.

    Occurred the other day when I was yet again snarking on Lying for Jesus as a double and triple whammy ~ lying is a sin, Jesus is one with the lord makes it taking the lord's name in vain, a sin, and I have no idea how bearing false witness against the lord by lying for his son fits in there ~ that the churches missed that one too. What with all the stained glass, flying buttresses, gold lame, idols and statuary, crosses and catacombs, not to mention the television cable and broadcast networks … they certainly are being seen. They certainly have their reward.

  4. White evangelical culture is greivance culture. They always feel persecuted and entitled to 'wave   it in your face'.

  5. “Stern goes on to quote a number of former football players who say they did feel coerced into joining the prayers, and the prayers made them uncomfortable and did not reflect their personal religious views.”

    That is exactly what happened to me 45 years ago.

    I ended up quitting the team.

    And then God gave them an 0-10 season.

  6. I'm not a lawyer but it seems to me that if/when the USSC decides to liberate religion in the public sphere, they will run up against the standard of equal rights. If you empower a christian coach, (Small 'c' is deliberate) whatever rights to pray that the court decides are legal for the Baptist, become legal for non-christian players and religions.

    Enforcement with any bias against the minority religion should be grounds for a suit with a claim for punitive damages. Agreed, this is highly speculative – maybe a court or jury would see it differently but what if a Wiccan player or school club wanted to do a ritual "spell" for their team or against the opposing team during the pre-game warmup? How does this differ from prayer and the christian right to exercise their religious belief?

    Separation of Church and State protects the rights of all. The more narrow your view, the more dangerous is the Pandora's box of allowing a blending of superstition and government. I'm not sure, but young people may take this issue and ram it sideways up the behind of the school authorities. Let the fundamentalist principal who tries to turn the USSC decision into a singular crusade FOR his religion and AGAINST all others be named in a multi-million dollar religious persecution case where the school district is on the hook and see how policy gets rewritten.

    • I don't think you grasp how deep the fix is in.

      This time, the plan is for the Confederacy to win.



      • To many Americans, it seems reasonable to allow schools to allow the practice of prayer. The underlying motive that some christians have is to compel non-religious kids into christianity. 

        It's a bad policy to open the door to religion in the public arena. This will become obvious when the shoe is on the other foot – when non-traditional religions ask for equal rights in the practice of Islam or Wicca. 

        I do not think the USSC will open the door to discrimination against nin-christian religions. It is a bridge too far to justify. According to the Internet,

        "If the court finds your civil rights have been violated, you may be entitled to recover lost wages, medical expenses, confinement compensation, out-of-pocket expenses, pain and suffering, humiliation, harm to your reputation, punitive damages, and attorney fees and costs."

        The Confederacy was serious in 1861 – so was the Union. Courts are one place this war will be fought – it can't break this time along the geographical lines of slave states v free states. You may not be paying attention but the decision to dissolve Disney's governmental status is invalid until Florida (or the local county) comes up with over a BILLION to pay Disney's debt! So DeSantis will publicly take this in the behind. I have talked about Jury Nullification but  if progressives pay attention and don't avoid jury duty, they can hang every case that comes up against women who obtain an abortion in a state that bans abortion. ONE progressive on the jury can stop a conviction. I "grasp" this very well – do you?

        • Taking your last point first, jury nullification is unlawful. Fortunately, modern jury instructions from the court usually make it clear that it's impermissible.

          And I'm quite familiar with the ramifications of Florida's treatment of Disney. But it's theatre. It won't be enforceable.

          The larger, original point is that the Supreme Court will do whatever it likes. They take cases they want to, and rarely revisit settled issues. They don't have to take cases from complaining faiths – they can just deny certiorari.

          The current Supreme Court majority has an agenda and doesn't care what you or I think.   

          • I'm not sure if you are a lawyer or maybe you just play one on the Internet. Your statement that Jury Nullification is unlawful is false I won't present my opinion as a fact. Here is the law:

            The written decision by the US Court of Appeals for the District of Columbia in United States v. Dougherty – and I quote:

            "The fact that there is widespread existence of the jury's prerogative, and approval of its existence as a "necessary counter to casehardened judges and arbitrary prosecutors," does not establish as an imperative that the jury must be informed by the judge of that power."

            (Got that? The court said explicitly that you HAVE this power, but nobody is allowed to TELL you that you have this power.)

            The "prerogative" that the court presents a "fact" is jury nullification. The decision goes on to affirm the power of the court to prohibit the attorneys for the defense from telling the jury that they have this power.  This was in 1972 but no higher court has reversed or significantly changed this standard.

            The judge, if he/she is a pinhead, will ask if you will swear to follow the instructions of the court when you decide the case  (The demand is invalid because you do not know the case or whether the law is immoral.) So you say 'yes' and then do your duty as a juror as you see fit. 

            Congress is paralyzed to do anything. The power of the president in executive action is limited. In a lot of ways, progress or descent to neanderthal thinking will be up to the courts. Juries can set aside an immoral law.

            What is an  "immoral" law If a woman is charged with murder for using an abortion pill which the state she is in has decreed is illegal, I want to be on that jury and I will not convict. She can only be tried once if she's found 'not guilty.' This is my right as a juror – no juror has ever been held to blame for a decision based on nullification. 

            Get on the jury Don't dodge it. Tell the judge whatever will make him happy – then exercise your citizenship as is your right and duty.

  7. Yeah, let a Muslim coach start praying!

    Then those "Christian" "Evilgenitals* will demand that prayer needs to stopped.

    *I call them " Evilgenitals" because they're so terrified of sex.  They hate sex.  And they look to stop anyone and everyone from having some fun.



  8. OMG a HOLY WAR.  Chose up sides.  

    Is holy war the ultimate oxymoron?  I put it in the top ten.  


  9. As a member of the Satanic Temple, I'll be bringing my goat to sacrifice on the 50 yard line. My religion dictates the sacrifice happens during the  half time festivities.


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