Continuing its hot streak of elevating religious concerns over democratic rights, the conservative-dominated Supreme Court on Monday overruled a 51-year old precedent on the separation of church and state and opened the door to prayer in public school.
It did so on ideological lines, 6-3, just days after gutting the constitutional right to abortion.
The facts of the case are familiar to anyone who went to public school in a conservative area, as I did. A high-school football coach, Joseph Kennedy, led prayers both on-field and in the locker room at football games. Although the Court’s opinion in Kennedy v. Bremerton School District, authored by Justice Neil Gorsuch, says these prayers were personal and private, Justice Sonia Sotomayor’s dissent includes photographs of the actual prayers, showing that they were anything but: football players kneeled around the coach as he led them in Christian prayer.
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From a constitutional point of view, these facts present the tension between two clauses of the First Amendment. On the one hand, the coach’s prayer is his free exercise of religion. On the other hand, he’s the coach, this is a public school, and while in theory the players don’t have to participate, in practice everyone knows that you may risk ostracism and exclusion if you don’t. Thus, the prayers arguably violate the Establishment Clause, which forbids the government from establishing an official religion.
It is no surprise that Justice Gorsuch focuses exclusively on the first clause, holding that Coach Kennedy’s prayers were not only permissible but that the school must allow him to conduct them. Gorsuch has repeatedly ruled in this way during his time on the court: requiring taxpayers to fund religious schools when they fund non-religious private ones, granting churches exemptions from COVID prevention rules, exempting religious people and organizations from complying with civil rights laws, and numerous other examples.
It is in these religion cases that Justice Gorsuch uses his most sweeping language, and Kennedy is no exception.
“Respect for religious expressions is indispensable to life in a free and diverse Republic,” Gorsuch writes in the conclusion to his opinion, “whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.”
That is lofty, elegant language, but it fails to account in any way for the freedom of a football player to not participate in the prayer—or for the clear perception that the prayers create that this is an official school prayer, led by a school employee, at a school event.
That’s certainly how I experienced these prayers when I was in high school. All the football jocks were in FCA (the Fellowship of Christian Athletes) and the prayers they led were as official as a fire drill.
Justice Gorsuch depicts Coach Kennedy as a devout, humble Christian persecuted by a secularist cabal—the same Christian Nationalist imagery that the conservative justices have used in other religion cases. But in fact he was a figure of significant power who, rather than pray privately on the sidelines, for example, used his power to evangelize in dramatic—and effectively inescapable—fashion at a public-school event.
But Justice Gorsuch goes even further. Not content with allowing the football prayer, he also overturned an unpopular 1971 precedent, Lemon v. Kurtzman, which set forth a three-part test for when a particular action violates the Establishment Clause. No one really liked Lemon—it was too easy to argue every side of its three-pronged test, and it led to messy decisions that parsed the nuances of words like “endorse” and “entangle.” Decades ago, Justice Antonin Scalia wrote that Lemon was “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”
Well, Justice Gorsuch has at last plunged a stake into Lemon’s heart, killing it once and for all. In its place—just like Justice Clarence Thomas in the recent gun-control case and Justice Samuel Alito in Dobbs—Justice Gorsuch only offers “history and tradition.” If a practice has been done traditionally in history, no matter what message it sends about religion, it’s constitutional.
Needless to say, that opens the door to prayers in public school, to sectarian religious displays on public property (which the liberal justices shamefully endorsed a few years ago), and to numerous other actions which dot our country’s history. As Justice Sotomayor writes in her dissent, citing the liberals’ dissent in Dobbs, “the problems with elevating history and tradition over purpose and precedent are well documented… the Framers ‘defined rights in general terms to permit future evolution in their scope and meaning.’”
This, really, is what conservatives’ “originalism” has always been about: not interpreting some textual provision, but making progress impossible. Conservatives say that liberal judges are inventing too many rights—like, say, the right to watch a football game without being proselytized to by the majority religion, or the right to control one’s own body, or the right to be protected from an AR-15 wielded by a teenager. So they slam the door on interpreting the Constitution in all but the most limited ways.
Meanwhile, wrapped up in their Christian Nationalist fever dream of a “war on religion,” the Court’s religious majority advances the actual war waged by religious extremists against the Constitution itself. The victims of Dobbs are not the clumps of cells removed from pregnant women; they are the women whose bodies are controlled by the religious beliefs of conservative governments. The victims of the Court’s line of COVID cases were not religious people forced to wear a mask in church, but communities that suffered under the spread of the lethal pandemic. The victims of the Court’s religious exemption cases were not the Christian business owners who can’t bring themselves to sell a gay couple a wedding cake or offer contraception insurance to women, but the women and the LGBTQ people who learned just where power still lies in this country.
And here, of course, the victim is not Coach Kennedy, who is already a well-subsidized and much-praised hero of the Christian Right, but the kids forced, if they want to participate in the mainstream of high school society, to listen to his Christian proselytization endorsed and subsidized by taxpayer money. These are kids who may be Muslim, or Jewish, or gay, or atheist, or, for that matter, victims of abuse at the hands of church leaders. (Let’s see how well these guarantees stand up when it’s a Muslim coach offering a "voluntary" Muslim prayer.)
In short, what you’re willfully ignoring is power, Justice Gorsuch. Your group has it, and mine (Jews, LGBTQ folks, etc.) do not. What you describe as discrimination, I experience as protection. Which is what the Constitution was meant to offer to vulnerable populations.
Until you and your colleagues began dismantling it.
