In a country in which nude dancing, flag burning, pornography, and wearing obscenity-emblazoned jackets in public are constitutionally protected expression, does a devout Christian high school football coach have a constitutional right to briefly pray at midfield after the game?
While such a question might have seemed absurd on its face to titans in the history of American football in their days, from Teddy Roosevelt and Vince Lombardi, to Bobby Bowden and Kurt Warner, we now know that the answer is yes. In Kennedy v. Bremerton, the Supreme Court’s rejection of strict separationism is an important turning point in its religion clause jurisprudence, putting it on a path toward coherence, and an important victory for free speech rights of government employees. It also sets forth premises that may ultimately upend its erroneous coercion precedents.
Since the strict separationist heyday of the 1960s and 70s, over a generation of originalist scholarship and jurisprudence has shown that strict separationism fails as an interpretation of original public meaning. From its inception in Everson, strict separationism chose the battlefield of history. Now that originalist accommodationists have taken the field, secularistic, strict separationism survives on the fumes of bad precedent.
Strict separationism is like a Faceless Man of Game of Thrones lore: a ruthless and highly effective assassin who strategically changes faces like masks to accomplish his ends. Over the past seventy years or so, it has slain state accommodations of religion under the guise of various fabricated tests. The ghoulish face of the Lemon Test is the most prominent example.
For years, under the guise of Lemon, the Court struck down even modest governmental attempts to accommodate religious parents and children and alleviate the costs of religious education. It generated a veritable skein of incoherent precedents that William Rehnquist memorably canvassed. While Justice Scalia famously identified the Lemon ghoul for what it was, strict separationist ideology was adept. It donned other faces, including the “Endorsement Test” (a sort of offshoot of the second prong of Lemon, the neither-advance-nor-inhibit-religion prong). But Endorsement was little better at generating a coherent body of law. Just five years after the Court held a public crèche display to be constitutional, it held a second crèche display to be unconstitutional, the crucial difference apparently being that the latter should have included a plastic Santa Claus.
In Kennedy, the Court mercifully gave the Lemon and Endorsement Tests the gift of death. Writing for the 6-3 majority, Justice Gorsuch argues that Lemon was not only “abstract and ahistorical,” but it set the Establishment Clause at cross-purposes with the Free Exercise Clause.
Hand-wringing in the elite media notwithstanding, the decision does not “further ero[de] the separation of church and state.” In fact, even Jefferson’s “wall” metaphor interpretation, which held that the federal government was prohibited from establishing a national church, remains intact. As the Court has laid out in cases from Marsh v. Chambers to Town of Greece v. Galloway, Kennedy simply instructs lower courts that the proper method to guide Establishment Clause jurisprudence is historic practice and understanding, i.e., originalism. Kennedy is a landmark case because it rejects Lemon’s ahistorical strict separationist rendering of the Establishment clause, which has been used as a vehicle for aggressive secularism, that is, active governmental discrimination against traditional religious expression.
Prayer as Free Exercise and Speech
In the Fulton case last term, the Court declined to overrule Employment Division v. Smith’s narrower protection of religious freedom or to clarify the line between government and private speech. In my view, there are respectable arguments on both sides of the debate over the original meaning of free exercise and whether to overrule Smith. But the Court correctly finds that the District’s actions ran afoul even of Smith. Kennedy’s prayers were targeted precisely because they were “religious.” Nothing in the policy promulgated would have prevented him from, say, kneeling at the fifty-yard line after the game to protest systemic American racism. Nor was it applied evenhandedly. Such failures of neutrality and general applicability triggered fatal strict scrutiny inquiry.
As for the speech component, the case is reminiscent of Fulton in considering what sort of speech shall be considered publicly reasonable, but this time the Court clarifies the line between government speech and employees’ private speech. As the secular, progressive state expands and becomes more aggressively hostile to traditional religious ideas and speech, its dogmatic partisans seek to expand job descriptions of employees in order to silence heterodox expression.
The District emphasized that Kennedy was visible at midfield with his school logo and attire on for the prayers. The Court concedes that these are symbols of his office as teacher/role model to the students. But, it simply does not follow that everything a teacher does is government speech subject to government control. Nor does it follow that the government establishes a religion when it fails to censor every private religious act of its employees. No one thinks, for example, that it is government speech when a Muslim teacher briefly prays before her meal, nor that an establishment has been erected when the school does not prevent her from wearing a hijab in the classroom.
The speech was private because the expression did not fall within the scope of Kennedy’s duties as a coach, i.e., speech that the district paid him to perform on the field. The district permitted other brief “secular” activities after the game—texting, greeting family, etc.—and so it cannot discriminate against Kennedy’s religious expression. The District’s actions did not even survive the Court’s “intermediate scrutiny” balancing test between individual free speech rights of government employees and employer interests, since the District’s purported anti-establishment interests were constitutionally groundless.
During oral argument, the liberal justices tried to throw the District a lifeline by framing (or reframing) the matter as one of the coach engaging in “coercion” through social pressure. Precedents like Lee v. Weisman and Santa Fe Ind. School Dist. v. Doe invoked social pressure as a form of psychological coercion to separationist effect in the schoolhouse context. Those cases held that free exercise claims were defeated by anti-establishment coercion concerns in the context of a rabbi’s prayer at a high school graduation and student-led prayer at football games.
The Kennedy Court distinguishes these cases, ostensibly leaving them intact. Lee and Santa Fe concerned public prayers, which it emphasizes were unconstitutional insofar as students were required to participate in or attend commencement and football games. In contrast, Kennedy’s private prayers were voluntarily joined by others, no students joined him during the three games he was fired over, and mere public observability was not coercive. The Court also notes that Kennedy voluntarily stopped performing pregame locker room prayers as evidence of his goodwill, suggesting that, at least on Lee and Santa Fe precedent, such religious expression may not be protected.
Still, some of the Court’s language could be read as laying the premises that will ultimately undermine Lee and Santa Fe, which were cases brought by litigants offended by the prayers: “offense does not amount to coercion”; “the Establishment Clause does not include anything like a “modified heckler’s veto”; “learning how to tolerate diverse expressive activities has always been ‘part of learning how to live in a pluralistic society’” (the latter is quoted directly from Lee in a chain of pro-prayer reasoning that the Court rejected).
These quotes when taken in conjunction with the Court’s rejection of the Endorsement Test that undergirded the reasoning of the Third Circuit in a case in which a coach silently joined student-led prayer in the locker room, suggest that this case will not be this Court’s last word on this matter.
In my own high school football career, there was indeed “social pressure” during locker room prayers to at least maintain respectful silence during the brief pregame prayer. But neither I nor (so far as I am aware) any of my teammates were under any illusions that our coach was a religious spokesman on behalf of the State of Kansas. I suspect that that is simply not how high school football players think about their coaches (and not just because these prayers are not composed by the state as in Engel v. Vitale).
Silence need only bespeak respect for one’s coach who is engaging in a prayer to God. Of course, there is always the danger of twisting the objective goodness of religion into coercive tyranny. But my experience was that it was entirely normal to maintain one’s conscientious beliefs (and even dissent from one’s coach’s peculiarly martial theology of God’s governance of football games) while still exhibiting respect for one’s superior. As Justice Scalia once pointed out, the notion that respectful silence entails agreement with everything uttered in one’s presence is indeed a sign we live in a vulgar age.
In short, the psychological coercion standard is yet another mask of the Faceless Man. “Social pressure” to remain respectfully silent during a commencement prayer or a student-led prayer over the loudspeakers or in a pregame locker room prayer is no more unconstitutional than the social pressure felt to stand and pledge allegiance to one nation under God.
Virtue and the Good of Religion
We live in a time when public schools are coercing students to identify their racial, gender, and religious identities according to the intersectional hierarchy of identity politics (a pseudo-religious catechism one has good reasons to believe is either a form of paganism or Christian heresy). It is way too late in the day to pretend that even the old strict separationist strictures on prayer and Bible reading in schools (themselves unmoored from history)—much less Coach Kennedy’s private prayers—are ensuring state “neutrality,” as if enforced non-prayer were neutral between religious and secular expression. The Kennedy Court’s reasoning can be seen as a form of benevolent neutrality, which is one of its least bad precedential options. But in reality, complete religious neutrality is a myth, because the very idea that “religious” conduct (defined broadly enough to account for all of our religious diversity) is essentially distinct from “secular” conduct is a myth. Secularism is a form of immanentist religious faith, with its own panoply of idols.
If we were permitted to set aside the legal categories that precedent has foisted upon us for a moment, we might instead ask: is religion, which Madison defined as the “duty we owe to our Creator” not an objective human good with attendant virtues, according to both natural law and the American constitutional tradition, which virtuous men ought to participate in and model for their pupils? Is it not good for young men to learn the virtues through sport?
In 1903, Teddy Roosevelt gave a talk to a chapter of the Young Men’s Christian Association, in which he praised its work educating young men into the virtues of manliness, which he believed were essential for a vigorous republic: “God-fearing, law-abiding, honor-loving, justice-doing; and also fearless and strong; able to hold their own in the hurly-burly of the world’s work, able to strive mightily that the forces of right may be in the end triumphant.” He approvingly noted the YMCA’s involvement in football—professional football had begun on a YMCA team and the President eventually had a hand in reshaping its rules—which Roosevelt lauded as “a thoroughly manly sport,” that was useful to form “vigorous men” in the aforementioned virtues.
But physical exertion alone was insufficient to acquire the virtues. In his official capacity as President of the United States, Roosevelt channeled the tradition of the Founders to declare public days of thanksgiving. He declared that the manly virtues, as well as the virtues of “gentleness and tenderness,” were also the fruit of regular prayer to God, and urged Americans to “earnestly pray that this spirit of righteousness and justice may grow in the hearts of all of us.”
In the end, the Court’s decision is quite modest. In the spirit of Roosevelt, it simply allows a football coach to participate in what has been one of the sport’s most important contributions to American society: the cultivation of virtues, including piety, among our young men.