The Supreme Court and the new religious aristocracy

The Supreme Court has effectively authorized schoolteachers to pressure their students to pray.

Kennedy v. Bremerton held that football coach Joseph Kennedy had the right to engage in what Justice Neil Gorsuch called a “short, private, personal prayer” on the 50-yard line after games. The court held that forbidding that prayer improperly discriminated on the basis of religion, because employees were allowed to do other personal things with their free time after games. There was no “record evidence that students felt pressured to participate in these prayers” and no evidence that the prayers disrupted the school. 

The actual facts are very different.

For years, Kennedy led his players in prayers. When the Bremerton School District learned of this, it told him that he could pray after games, but must do so silently and alone. It was concerned about pressure on the players. The coach has unlimited discretion to decide who plays. Students who don’t play won’t get football scholarships. 

The trial judge, whose findings of fact Gorsuch was obligated to accept unless he deemed it clearly erroneous (which he did not), wrote: “Players (sometimes via parents) reported feeling compelled to join Kennedy in prayer to stay connected with the team or ensure playing time, and there is no evidence of athletes praying in Kennedy’s absence. Kennedy himself testified that, ‘[o]ver time, the number of players who gathered near [him] after the game grew to include the majority of the team.’ . . . This slow accumulation of players joining Kennedy suggests exactly the type of vulnerability to social pressure that makes the Establishment Clause vital in the high school context.”  Nice starting position you have. Too bad if anything should happen to it.

Gorsuch places great weight on the school’s concession that there was “no evidence that students [were] directly coerced to pray with Kennedy.” That sentence has a crucial legal implication: henceforth, only direct coercion will count. Gorsuch wrote that “the possibility that students might choose, unprompted, to participate in Mr. Kennedy’s prayers [does not] necessarily prove them coercive.”   

But for many years, notably in the cases involving official school prayers, the court recognized that the pressure to conform, (as it put it in 1992) “though subtle and indirect, can be as real as any overt compulsion.” The problem is the result, not the method. A poisoner cannot defend himself from prosecution by pointing out that he never touched his victim. 

In his final communication to school officials before he was suspended, Kennedy declared that he would continue to pray and would not “flee the scene if stu­dents voluntarily [came] to the same area” where he was praying. He would not “discourage” students from joining him. No students joined him the three times he prayed on the field after his letter, but the school reasonably did not want to wait for the slow accumulation of players to begin again. 

Kennedy also publicized the dispute, attracting hostile crowds to games and hate mail that prompted several officials to resign because they feared for their safety. When he prayed, crowds swarmed the field around him. Private prayer this wasn’t.

The Establishment Clause is based in large part on the idea that state involvement can corrupt religion by turning it into a hypocritical sham. That idea has a long history. Jesus of Nazareth, for example: “do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others. . . . But when you pray, go into your room, close the door and pray to your Father, who is unseen.” 

He thought that external inducements – and intentionally or not, that is what the coach was creating – make prayer worthless. Individual school staff are of course entitled to think that Jesus didn’t understand real religion. But they shouldn’t be able to force that view on students.

The decision hamstrings schools that seek to prevent this kind of intimidation, as Ira Lupu and Robert Tuttle observe. The court requires proof of coercion, which might ultimately require testimony in open court from students courageous enough to face community opprobrium. The court has been making religious people a kind of aristocracy, free to disregard rules everyone else must follow. This case goes far beyond that, letting them take over parts of government in defiance of elected officials, and deploy state power for their own ends.

Suppose that a teacher decides to pray before the bell rings, telling students they may join him if they like. Part of the pre-1955 Good Friday Mass, which some Catholics still think appropriate (here disagreeing with the Vatican), reads:  “Let us pray also for the faithless Jews . . . hear our prayers, which we offer for the blindness of that people; that acknowledging the light of thy Truth, which is Christ, they may be delivered from their darkness.” Suppose, in a community with a history of anti-Semitic vandalism and violence, a teacher recites that, and growing numbers of students join him. Does the school district have the power to stop him? After this decision, dare they risk trying?

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.