Neil Gorsuch’s Decision on Kennedy vs. Bremerton School District Attacks Church State Divide
Continuing its streak of growing religious concerns at the expense of democratic rights, the conservative-dominated Supreme Court on Monday overturned a 51-year-old precedent on the separation of church and state and opened the door to prayer in public schools.
He did it 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 on the field and in the locker room at football games. Although the opinion of the Court in Kennedy v. Bremerton School Districtwritten by Judge Neil Gorsuch, says those prayers were personal and private, Judge Sotomayor’s dissent includes photographs of the actual prayers, showing they were anything but: football players kneeling around the coach as he led them in Christian prayer.
From a constitutional perspective, 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, it’s a public school, and if in theory the players don’t have to participate, in practice everyone knows that you risk ostracism and exclusion if you don’t. Thus, the prayers arguably violate the Establishment Clause, which prohibits the government from establishing an official religion.
It’s no surprise that Judge Gorsuch focused exclusively on the first clause, finding that Coach Kennedy’s prayers were not only allowed, but the school had to allow him to conduct them. Gorsuch repeatedly ruled this way during his time in court: requiring taxpayers to fund religious schools when funding non-religious private schools, giving churches exemptions from COVID prevention rules, exempting people and organizations nuns to comply with civil rights laws, and many other examples.
It is in these matters of religion that Judge Gorsuch uses his most radical 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 these expressions take place in sanctuary or on land, and whether they are manifested in word or with a bowed head. »
It is noble and elegant language, but it in no way takes into account the freedom of a football player not to participate in prayer – or the clear perception that prayers create that it is an official school prayer, led by a school employee, at a school event.
This is certainly how I experienced these prayers when I was in high school. All the footballers were in FCA (the Christian Athletes Community) and the prayers they led were as official as a fire drill.
Judge Gorsuch portrays Coach Kennedy as a devout, lowly Christian persecuted by a secular cabal – the same Christian nationalist imagery that conservative judges have used in other religious cases. But in fact, he was a significant power figure who, rather than praying privately on the fringes, for example, used his power to dramatically – and indeed unmissably – evangelize at a public school event.
But Judge Gorsuch goes even further. Not content with allowing football prayer, he also overturned an unpopular precedent from 1971, Lemon vs. Kurtzman, which sets out a three-part test for determining whether a particular action violates the Establishment Clause. No one really liked Lemon— it was too easy to argue every side of his three-pronged test, and it led to messy decisions that parsed the nuances of words like “approve” and “entangle.” Decades ago, Justice Scalia wrote this Lemon was “like a ghoul in a late-night horror movie who repeatedly sits in his grave and moves abroad, having been repeatedly killed and buried”.
Well, Judge Gorsuch finally drove a stake in Lemonthe heart, killing it once and for all. In his place, just like Judge Clarence Thomas in the recent gun control case and Judge Samuel Alito in Dobbs—Judge Gorsuch is only offering “history and tradition.” If a practice has been practiced traditionally in history, whatever message it sends about religion, it is constitutional.
Needless to say, this opens the door to public school prayers, sectarian religious protests on public property (which liberal justices shamefully endorsed a few years ago), and many other actions that mark the history of our country. As Justice Sotomayor writes in her dissent, citing the Liberal dissent in Dobbs“the problems with elevating history and tradition above purpose and precedent are well documented… the authors have defined the rights in general terms to allow for future evolution of their scope and scope meaning. »
Which, in effect, is what conservative “originalism” has always been: not interpreting a textual provision, but making progress impossible. Conservatives say liberal judges invent too many rights – like, say, the right to watch a football match without being proselytized by the majority religion, or the right to control one’s own body, or the right to be protected from AR-15 wielded by a teenager. So they slam the door on interpreting the Constitution in all but the most limited ways.
Meanwhile, enveloped in their Christian nationalist fever dream of a “war on religion”, the religious majority of the Court advances the real war waged by religious extremists against the Constitution itself. The victims of Dobbs are not the clumps of cells taken from pregnant women; these are the women whose bodies are controlled by the religious beliefs of conservative governments. The victims of the Court’s series of COVID cases were not clerics forced to wear masks in church, but communities who suffered as the deadly pandemic spread. The victims of the Court’s religious exemption cases were not Christian business owners who cannot bring themselves to sell a wedding cake to a gay couple or offer birth control insurance to women, but women and LGBTQ people who have learned exactly where the power still lies. this country.
And here, of course, the victim is not Coach Kennedy, who is already well funded and highly regarded. heroes of the christian right, but the kids are obliged, if they want to participate in the mainstream of high school society, to listen to his Christian proselytism endorsed and subsidized by taxpayers’ money. These are children who may be Muslim, or Jewish, or gay, or atheist, or, for that matter, abused by church leaders. (Let’s see how well these guarantees hold up when it comes to a Muslim coach offering a “voluntary” Muslim prayer.)
In short, what you deliberately ignore is power, Judge Gorsuch. Your group has it, and mine (Jews, LGBTQ people, etc.) doesn’t. What you describe as discrimination, I experience as protection. This is what the Constitution was supposed to provide for vulnerable populations.
Until you and your colleagues start dismantling it.