Thursday, December 7

Opinion | Will the Supreme Court once again favor the rights of Christians over everyone else?

Once again, the Supreme Court may bulldoze over protections for minorities in the name of religious liberty. In recent cases, the Supreme Court has allowed Christians to violate anti-discrimination laws designed to protect the LGBTQ community. Now, in a case on which it heard oral arguments Monday, the court may privilege a coach’s Christian practice over the U.S. Constitution itself — specifically the protection of religious minorities guaranteed by the separation of church and state.  

In Kennedy v. Bremerton School District, Joe Kennedy, a former public high school football coach, claims that his First Amendment rights were violated because the public school that employed him ordered him to stop publicly kneeling and praying at the 50-yard line immediately after games surrounded by students in front of a filled stadium. These moments often turned into Christian prayers to the youngsters on his team. The school repeatedly offered Kennedy alternatives — like praying in the press box or praying midfield after the stadium had emptied — but the coach refused them.  

One team member — who is an atheist yet felt forced to pray — explained that he worried that if he abstained, the coach would cut down his playing time. This is exactly the kind of dilemma that the Constitution’s separation of church and state seeks to avoid.

Instead, Kennedy brought a lawsuit raising both religious liberty and free speech claims. In particular, Kennedy maintains that he had a free speech right to engage in his midfield public prayers while at work as required by his religion. Thus, what is at issue is not a teacher’s right to private personal prayer, which the school was eager to accommodate, but his right to preach to his students in front of a stadium full of fans. There are at least two problems with his claim.  

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First, the free speech rights of public employers such as public school teachers and coaches are much diminished when they are at work. Public employees simply do not have the right to say whatever they want when on the job, and their employers may discipline them when they go off-message. More specifically, according to the Supreme Court, public employee speech on the job that owes its existence to that job is not protected at all. The logic behind this rule is that the government is paying you for your services and your speech, and it is therefore theirs to control.  

This logic applies here. As Kennedy now concedes, he was still on the clock during his public prayers, as his responsibilities extended to supervising students immediately after the game. Moreover, the school was paying the coach to give inspirational speeches to his team, and he simply would not have had access to either the team or the football field but for his job.  

Image: Joe Kennedy
Joe Kennedy, a former assistant football coach at Bremerton High School, stands at the school’s football field, in Bremerton, Wash., on March 9.Ted S. Warren / AP file

But even if Kennedy’s speech were protected, neither his free speech rights nor his religious rights are absolute. No constitutional right is. This is especially true when there are other constitutional rights at stake. Here, his rights are in opposition to public school students’ establishment clause rights. The establishment clause of the U.S. Constitution is the part of the First Amendment that mandates some degree of separation between church and state and forbids the government from favoring one religion over others or compelling people into practicing religion. It is this doctrine that informed the school’s decision to curtail Kennedy’s on-the-job religious activities. 

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Historically, the Supreme Court has been especially vigilant about protecting against establishment clause violations in public schools. The highest court, for instance, has barred the Ten Commandments from classroom walls and daily Bible readings in public school. That doesn’t mean that schools must avoid religion altogether — religion may be appropriately incorporated into history, English or world religions classes. But the government cannot religiously indoctrinate students at public school.  

More relevant, the Supreme Court has ruled that school-led or school-sponsored prayers violate the establishment clause. It has barred public school teachers from leading students in a short prayer at the beginning of the school day, even if participation was optional. It has barred public schools from inviting clergy to give religious invocations and benedictions at graduation ceremonies. Finally, the Supreme Court has concluded that a school’s organizing of students to lead prayers at football games can cross the constitutional line.   

These establishment clause decisions recognize that school-sponsored religious exercises — including prayers from authority figures like teachers and coaches — risk compromising both the religious liberty and the equality of students who belong to religious minorities.  

In Monday’s case, the students’ religious liberty is at stake because the coach’s Christian prayers could pressure the non-Christians among them into joining in even if contrary to their religious convictions. As the Supreme Court has recognized, students are particularly susceptible to pressure, including indirect pressure, which “can be as real as any overt compulsion.” If all their teammates participate, a student can feel overwhelming peer pressure to participate as well.

It can be harder still to resist the coercive pressure of an enormously influential role model, as coaches often are. Indeed, one team member — who is an atheist yet felt forced to pray — explained that he worried that if he abstained, the coach would cut down his playing time. This is exactly the kind of dilemma that the Constitution’s separation of church and state seeks to avoid.     

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Students’ equality is also at stake because their coach’s public prayers make the youngsters’ religious affiliation relevant to whether they feel truly part of the school community or not. One of the goals of the establishment clause is to ensure that the government does not make second-class citizens of those who do not belong to the religious majority. Or as Supreme Court Justice Harry Blackmun observed in a concurring opinion to Lee v. Weisman, a 1992 case that struck down school-sponsored prayers, “A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some.” When most team members join the coach, those who don’t are suddenly made into second-class outsiders. 

Kennedy should have and actually does have the right to pray. But he should not have the right to do so in a way that runs roughshod over the rights of students who are doubly vulnerable to compulsion — because of the power asymmetry between teachers and young students, and because of their minority status in an overwhelmingly Christian country.  

Unfortunately, the Supreme Court may be on the verge of eliminating these essential establishment clause protections for public school children. At oral argument, the conservative justices indicated that their sympathy may lie with the Christian coach who wanted to pray exactly as he pleased rather than the non-Christian youngsters under his authority. In these justices’ eyes, the religious rights of Christians may still take precedence over all else. 

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