In the war over public education in the U.S., conservatives never concede defeat. The right prefers to bide its time, waiting for a moment to press its advantage. The Supreme Court has just provided them with one such moment. First Amendment advocates were worried when the Court agreed to hear arguments in Kennedy v. Bremerton School District, a case with implications for the future of prayer in public schools. They felt little good could possibly issue from the Court, which is dominated by Republican appointees who tend to hew closely to the party’s preference for the Christian religion. The tenor of Monday’s arguments confirmed the advocates’ fears. A majority of the Court’s justices seem prepared to side with a Christian football coach who led his players in public prayers after every game.
The coach, Joseph Kennedy, claims the Bremerton School District unlawfully discriminated against him by ordering him to stop leading the prayers. The school district says it was trying to prevent a lawsuit. Precedent favors the school district, says Caroline Mala Corbin, a professor of law at the University of Miami in Florida, but if enough justices disagree, the Court could leave public schools vulnerable to religious displays from staff and educators. That would place religious minorities in a difficult position. Even if they aren’t forced to participate in prayer, social pressure could coerce them into feeling as though they must.
“The thing to understand is that there is a religious-liberty interest on both sides of the equation,” Corbin tells me. “Also at stake are students’ religious-liberty rights. And one thing the establishment clause is meant to protect them from is being forced into religious exercises if they don’t want to.”
The social pressure to join in a school-sponsored religious display can be intense, as shown by the details of the Bremerton case. A parent complained that his atheist son “felt compelled to participate” in the prayer, and that “he felt he wouldn’t get to play as much” if he did not. “There was a lot of pressure on students to join these prayers,” Corbin points out. “Granted, it’s not legal coercion in that they will be punished by the school, but the peer pressure is enormous.”
Equally great is the pressure that emanates from a figure like a football coach. “Players’ coaches wield an enormous amount of power because they’re huge authority figures, and they hold so many serious benefits, from playing time to access to scholarships,” says Rachel Laser, the president and CEO of Americans United for Separation of Church and State, which represents the Bremerton School District (and where, full disclosure, I used to work). “So students feel compelled to join their coach when he heads to a place that is ritualistically a time for the team to gather, and starts praying.”
Kennedy’s attorneys counter with arguments that, in Laser’s view, mischaracterize the facts of the case. A website for the First Liberty Institute, a Christian right group that represents Kennedy, calls him “a man of heroic persistence and courage” who was fired “for simply kneeling in brief, quiet and personal prayer.” But Kennedy also led players in locker-room prayers, was offered chances to pray privately, and allowed his post-game prayers to become spectacles, a dynamic that only intensified as his infamy grew. At one football game, a crowd stampeded onto the field to join him, knocking over members of the school’s marching band in the rush. A school official eventually recommended against renewing his year-to-year contract, and Kennedy declined to reapply.
Kennedy’s supposed “firing” made him a celebrity to the Christian right. His dismissal allegedly proved what the movement had long rumored to be true: that the secular government had taken God out of schools and turned Christians into a persecuted remnant. The facts, of course, don’t show this at all. A public-school teacher can’t lead students in prayer during class, but the same teacher can sponsor a chapter of the Fellowship of Christian Athletes. Previous Supreme Court verdicts that protected the right of students to start religious clubs and organizations also allow students to start a Gay Straight Alliance at school. According to precedent, the only way to safeguard the constitutional rights of both groups is to ensure public schools remain religiously neutral.
Neutrality has always irked the Christian right, a sentiment visible in its most recent attacks on public education. The point of a bill like Florida’s “Don’t Say Gay” law isn’t really to protect schoolchildren from “grooming” but to push LGBT teachers back into the closet, making schools a place where heterosexuality is mandatory by all but official decree. That isn’t neutrality, but something else: an agenda that’s of a piece with the Christian right’s broader objections to secular education. Should the Supreme Court favor Kennedy, “it will once again be siding with a Christian majority against the interests of a minority,” Corbin says. As proof, she points to other recent Court decisions. In 2018, the Court ruled that the Colorado Civil Rights Commission had expressed “some elements of a clear and impermissible hostility” toward religion when it found that a baker broke the law by refusing to fill an order for an LGBT couple. Last year, it decided that a Catholic foster-care agency could reject same-sex couples without losing a contract with the city of Philadelphia.
The precise implications of Bremerton will depend on the rationale the Supreme Court cites in its decision. In arguments, however, the conservative justices appeared sympathetic to Kennedy’s arguments. The Court may stop short of allowing teachers to lead students in a pledge of allegiance to the Christian flag — and yes, that’s a real flag. But even a modest verdict in Kennedy’s favor would open a crack in the wall of separation between church and state. That basic First Amendment concept has been under sustained attack from the right for many decades. Should the Court hand the right a victory, religious minorities will bear the burden.
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