Some Thoughts on Kennedy v. Bremerton

The conservative majority Supreme Court of the United States is right now in the midst of flexing its power. Today’s release of the 6–3 decision in the Kennedy v. Bremerton School District case struck a nerve with me, even though it is hardly the most destructive in this sequence of rulings—Dobbs v. Jackson Women’s Health Organization, Vega v. Tekoh, and the likely outcome in West Virginia v. EPA are orders of magnitude worse.

In Kennedy v. Bremerton, a high school football coach lost his job for holding post-game prayers at the 50-yard line. What began as a quiet, private prayer gradually became something where he was joined by his players, which prompted the district to step in. Eventually, the school placed the coach on administrative leave and declined to renew his contract for the following year. The coach sued the school district, claiming that they violated his right to religious expression by punishing him for saying these prayers.

I am neither a lawyer nor an expert court watcher, but I wanted to write this post as both a teacher and a former high school athlete.

The coach is of course allowed to say a private prayer, and in this case I am willing to believe the coach that the two students who, he says, ever expressed discomfort with the prayers were not punished for having done so.

(The number of students who we uncomfortable even voicing their concern is the larger problem, but it is hard to prove in the absence of evidence.)

And yet, the details of this case blurred the lines between the behavior of the coach as coach and his behavior as a private citizen. The defense alleged, reasonably, that his conspicuous prayers that took place on the 50-yard line of the field while surrounded by players constituted a space where he was regarded first and foremost as “coach.” Further, he alleges these were voluntary prayers that he did nothing to lead, but there is pictorial evidence where he appears to be doing more than engaging in a private prayer while most of the students were otherwise occupied (as claimed in the case).

I dislike how the coach performatively challenged the school’s instructions to refrain from these activities, but my problem with this ruling is less about specific allegations and protestations about what this coach did and did not do and more about the broad implications of the ruling.

I played baseball and basketball through high school and, at no point that I can recall did my coaches offer a prayer. It is possible that I simply tuned some things out, but I remember awkwardly jumping up and down and barking like a dog before home basketball games. These circles, at least at my high school, were comical imitations of macho pump-up videos organized by players rather than prayer, but I can certainly attest to peer pressure to at least make a show of going along when these activities that have nothing to do with playing the sport seem to become compulsory parts of being part of the team.

Most people did not grow up in small town Vermont—when I happened to be in Texas on July 4 a few years ago and sat through a Christian prayer that led into the fireworks display accompanied by patriotic music. I will admit to laughing a few minutes into the songs when I heard the opening bars to “God Blessed Texas”—and there are a lot of people who feel more pressure from the ambient Christianity around them, whether because it is more aggressively oppressive whether they live, or because their non-Christian religion is a more central part of their identity, or because they are a more identifiably minoritized person.

That is, there are a lot of people with stories about how activities like an optional prayer in team or classroom settings alienates anyone who refuses to participate in that activity, and potentially singles them out for proselytizing, retaliation, or harassment. Whether or not the coach directly participated in those activities, their actions created an environment that enabled them.

The majority opinion in this case, written by Neil Gorsuch, emphasizes that the school infringed upon the coach’s private religious belief in its demands, suspension, and decision not to renew his contract.

(In terms of the outcome, rather than the substance, of the decision, I am particularly struck by the last point—non-renewal might have the same effect as a firing, but the mechanics are not quite the same.)

Gorsuch wrote the opinion to be religiously neutral. (He also seems to misrepresents basic facts about the case, but I digress.) Ostensibly, a Jewish or Muslim coach would have the same freedom to offer a prayer, but the situations are not comparable. The practice in question is explicitly Christian. Even if every religion prayed in the same way—and they do not—it is hard to imagine large numbers of players joining their coach in these moments in this wildly-unlikely hypothetical situation, while it is comparatively easy to imagine their parents asking that such a coach be removed.

But this is also the problem.

Basically every study shows that roughly 70% of people in the United States are some flavor of Christian, with Protestant denominations making up the overwhelming majority of those. The numbers of religiously unaffiliated are on the rise, but some number of those remain broadly Protestant, just without being affiliated with a particular church. Under these circumstances, I think it is all the more important to ensure that people in positions of authority in public institutions—whether coaches or teachers or principals—are not implicitly creating a situation where students feel pressured to either join a religious activity or be singled out by choosing not to join. To do otherwise tacitly puts the state in a position where it is endorsing the dominant religion, whether or not it deliberately chooses to do so. I fear that is the point of this ruling.

As Sonia Sotomayor points out in her dissent, such entanglements are hardly a win for religious freedom:

[This ruling] elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all. Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection. In doing so, the Court 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.

N.B. The discussion here is usually pretty light, but I’ve disabled comments on this post anyway because I don’t have the energy to field comments on this topic right now.

Sweden takes the next step

As reported on the BBC, Sweden has taken the next step onward in the journey towards sexuality-blind equality, and voted to legalize same-sex marriages, religious or civil. According to the article, the Lutheran Church has offered to recognize partnerships, but not look favourably on marriage.

On one hand I personally believe that marriage and partnership (civil) rights should be made mutually exclusive, marriage being a religious issue and government benefits being civil. It seems ludicrous that the government refuses benefits to ‘partners’ based on a religious judgment, when partners may be of all shapes and sizes, including siblings, parents, grandparents, homosexual couples, heterosexual couples, etc. If the divide between marriage and civil benefits were actually a divide, then the government could better serve its citizens by guaranteeing rights–even just the basic ones such as adoption, custody of children and inheritance.

But I digress. What I like about the Swedish law is that it does not force the Lutheran church or any other to carry out the marriages, and the Lutheran church has decided to let individual pastors refuse, but it has stated that homosexual couples wed in religious ceremonies have equal protection to those of civil ceremonies. This is what states may do for religion–recognize the binding power of the ceremony–not lay down religious doctrine; this also is a civil decision, not one made because they church favored it, limiting the interconnectedness in the other direction, too.