By Kenneth Tiven in Washington
This week, the US Supreme Court hears a case involving Christian prayer by a public school official who was dismissed from his job for leading prayers while working. The case from Bremerton, Washington, has been before the courts since 2015 and has lost each time, but it is back because the Court appears favourably inclined to religious behaviour in the workplace. The case involves Joseph Kennedy, a football coach, who prayed with his team before games and again in the field after the match. He was suspended and wants reinstatement. If he wins with the conservative make-up of the Court’s majority, it will be a major shift enabled by the former president Donald Trump getting three conservative judges jammed through the US Senate confirmation process.
The case has been helped along by the Republican political campaign aimed at restoring public schools’ “authority” to indoctrinate students with Christianity. Constitutional Separation of Church and State has never prevented Christian religious events in grade schools and high schools in past decades despite most public schools having many students who are not Christians. Religious intolerance is on the rise as a companion of nationalism and anti-immigrant sentiments endorsed by Trump.
The Christian support of right-wing political thought has pushed this back into the spotlight. The campaign is on the brink of success in the courts. Proponents of school prayer have, as a tactic, swapped the victim and offender. Schools backing prayer in the classroom or the sports field believe that any attempt to limit them is a persecution of their beliefs. School supervisors, lawmakers, judges and parents opposed to children being indoctrinated are positioned as anti-Christian bigots.
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The case is Kennedy vs Bremerton School District, with the coach represented by First Liberty Institute, a legal organization based in Plano, Texas. The coach said he never intended to create a “ruckus”. “It is me giving thanks after a football game. Pretty simple,” said Kennedy, who was the junior varsity coach and assistant varsity coach at Bremerton High School in Washington state in 2015 when his prayers at the 50-yard line led to quite a fuss.
After scaling back some religious expression at the request of school administrators, Kennedy announced he would continue kneeling and praying after Bremerton’s homecoming game that October. Some players from the other team joined him, as did some spectators, who rushed from the stands and created what the district termed a “circus on the field”. Conservative religious and legal groups embraced the case, but repeatedly lost in lower courts and at the appeals’ level as well.
Getting this rehearing the coach’s lawyers, in their brief, argued:
“The First Amendment protects Kennedy’s prayer twice over the public school employees have no constitutional right to inject prayer or proselytization into their official duties. … But schools cannot define the job duties of teachers and coaches to be so all-encompassing as to deny them all rights to individual expression on school grounds.”
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The school district argued that Kennedy was an employee engaged in official duties, so his speech could be regulated. “The district is paying somebody to speak and convey its message,” says Richard B Katskee, the vice-president and legal director of Americans United for Separation of Church and State, which is representing the school district.
About 65-70% of the American population is—among multiple sects and denominations—considered Christian, although today less than half the population belongs to a church. Despite some news reports to the contrary, Gallup Poll Daily tracking shows no evidence that church attendance in America has been increasing as a result of bad economic times; the 42% of Americans who report having attended church regularly over the last several months is unchanged from earlier this year.
Originally both a federal district court as well as the 9th Circuit Court of Appeals in San Francisco denied the coach’s bid for an injunction. The case reached the Supreme Court in 2019. While the high court denied review, four justices signed a statement that said while they agreed on procedural grounds, they were troubled by the lower courts’ “understanding of the free speech rights of educators”.
Justice Samuel Alito wrote the statement in 2019 saying: “The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable.” Signing on were Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh. The case then wound its way back through more lower courts still losing, but with the addition of Amy Comey Barret replacing liberal icon Ruth Bader Ginsburg, the conservative super majority was ready to examine what they had opined about four years earlier.
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In fact, these justices, now joined by Barrett, have increased their rhetoric about government “discrimination” against religious speech and exercise in the intervening years. They have demanded special rights for religious groups and individuals while insisting that the separation of Church and State is actually unconstitutional. Under this view, the government is not barred from endorsing or coercing religion in schools; it is required to do so. Kennedy takes this principle to its logical extreme. The Court appears likely to hold that the First Amendment does not prohibit school officials from praying publicly on the job but rather protects their ability to intermingle church and State, whatever the impact on students and their parents.
—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels