Last week, Republican-appointed Supreme Court justices ruled that states that subsidize private schools can’t exclude religious institutions, even if that means taxpayers are forced to fund religious education. In a dissent, Justice Sonia Sotomayor wrote, “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”
This morning, as NBC News reported, those same justices took an even larger chunk of that metaphorical wall.
The Supreme Court ruled Monday that a Washington state high school football coach had a right to pray on the field immediately after games, a decision that could lead to more acceptance of religious expression in public schools.
Predictably, the ruling in Kennedy v. Bremerton School District was 6-3, with the six conservatives voting in the majority. The decision was written by Justice Neil Gorsuch, one of Donald Trump's three appointees.
At the heart of the case was a public school football coach in the state of Washington who had a habit of incorporating prayers and religious messages into his job, including leading students in prayer at the 50-yard line after games.
The school’s concerns were obvious: Public school educators are supposed to be neutral on matters of faith when acting in their official capacities during school events. Officials didn’t say the coach couldn’t pray. In fact, they tried to accommodate his faith-based practices: The school said he could give motivational talks to the student athletes, and he could have post-game prayers in private.
Kennedy initially agreed — until a legal group affiliated with the religious right movement got involved, told the coach he was a victim, and Kennedy decided to ignore the accommodation efforts.
Ultimately, the coach became something of a cause célèbre in the religious right, and after one game, conservatives were so eager to show their support that when he gathered in the middle of the field for another post-game prayer with students, supporters rushed to join the religious exercise. It didn’t help that he’d invited the media and a local politician to watch his display.
Kennedy was put on administrative leave and ultimately decided not to renew his contract. The coach then moved to Florida and filed suit.
Lower courts ruled that because the coach exercised his religious practices at public school games, he was acting as a taxpayer-financed public employee, not as a private citizen engaged in prayer. Those rulings were entirely in line with Supreme Court precedent.
This morning, the six-member conservative majority decided to ignore those precedents, concluding that Kennedy had a First Amendment right to pray in his private capacity.
Gorsuch argued, “Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway.”
The whole point, of course, was that his students were not “otherwise occupied.” On the contrary, they felt compelled to join their coach and their fellow student athletes at the 50-yard line for a joint prayer.
The result is a ruling that effectively declares that a public school official, whose salary is paid by taxpayers, can lead public school students in religious worship at a public school event.
That’s ... awfully tough to defend.
In her dissent, Sotomayor concluded that the court’s majority “sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty.”
That need not be treated as a throwaway rhetorical line.
The New York Times ran an unexpectedly odd report last week, under a headline that read, “A Pro-Religion Court.” In the lede, the article argued, “The Supreme Court has become the most pro-religion it’s been since at least the 1950s, and it appears to include the six most pro-religion justices since at least World War II.”
It’s evidence of a misguided assumption that to be “pro-religion” is to be against the separation of church and state. Such an approach is antithetical to both the First Amendment and the American tradition, which has long held that matters faith should be free to flourish without government intervention, funding, or involvement.
The Supreme Court’s two most recent church-state cases haven’t advanced religious liberty; they’ve done the opposite.