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The religious right had a great day in the Supreme Court

The justices may take a big bite out of the First Amendment’s establishment clause, or they might take a simply enormous bite out of it.

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A woman raises her hands in prayer outside of the Supreme Court building.
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The best-case scenario for supporters of church/state separation, after the Supreme Court’s oral argument in Kennedy v. Bremerton School District on Monday, is that the justices leave in place a rule which prohibits public schools from actively coercing students into participating in a religious exercise that they find objectionable.

The worst case, although probably not a particularly likely one, is that the justices give school officials free rein to pressure students into embracing those officials’ religious beliefs.

Most likely, the Court will leave in place some of the current rules against schools actively pressuring their students into religious behavior, while also taking a huge bite out of the Constitution’s establishment clause, which has historically prohibited the government from promoting or discouraging a certain religious view.

A majority of the justices seemed eager to shrink this constitutional provision significantly, though it is unclear just how much they will reduce it. At the very least, it appears likely that public school teachers, coaches, and other school officials will gain some ability to subtly pressure students into religious activity that students, or their parents, may find objectionable.

Kennedy v. Bremerton School District, briefly explained

Kennedy involves Joseph Kennedy, a former public school football coach in Bremerton, Washington, who for many years would lead post-game prayer sessions for his players and for players on the opposing team. After his school district ordered him to discontinue these sessions, he largely did so, but he still insisted upon going to the 50-yard line after games and visibly praying in front of his players and the gathered spectators.

Kennedy also went on a nationwide media tour — at one point, Good Morning America did a segment on him — promoting his desire to tout his faith while he was coaching his students. This led many of Kennedy’s supporters to become disruptive during games. After one game, for example, so many people stormed the field to support Kennedy that a federal appeals court described it as a “stampede.” The district itself complained that this rush of people knocked over members of the school’s marching band, and that it was unable “to keep kids safe.”

Meanwhile, at least one parent complained to the school that his son “felt compelled to participate” in Kennedy’s prayers, despite the fact that he is an atheist, because the student feared “he wouldn’t get to play as much if he didn’t participate.”

Eventually, the school placed Kennedy on leave, after he rebuffed the school’s attempt to reach an accommodation that would allow Kennedy to pray without disrupting games or pressuring students into unwanted religious acts.

Under existing law, this should not be a difficult case. The Supreme Court suggested in Lee v. Weisman (1992) that public school-sponsored religious activity is inherently coercive, both because of the authority school officials wield over students, and because students who stand out are likely to face peer pressure to fall in line. Such pressure, the Court said in Lee, may be “subtle and indirect” but it also “can be as real as any overt compulsion,” as it leaves a young nonadherent with “a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow.”

But the Court’s 6-3 Republican majority has been quite clear about its eagerness to overrule longstanding religion cases. One of the new majority’s very first actions after Justice Amy Coney Barrett’s confirmation gave Republicans a supermajority on the Court, for example, was to give churches and other places of worship a new right to defy public health orders during the Covid-19 pandemic.

And that eagerness was on full display during Monday’s oral argument. Though it is unlikely that the Court will overrule Lee altogether, several justices spoke openly about overruling other important precedents. Other justices, meanwhile, spoke of watering Lee down to the point that it would allow people like Kennedy to continue to pressure their students into Christianity.

The Court’s establishment clause cases are, admittedly, a bit muddled

A win for Kennedy would permit teachers and coaches to take at least some actions that pressure students to embrace the teacher or coach’s faith, and it could radically change the Court’s approach to nearly all establishment clause cases.

The Court has, at various times, proposed different tests to determine when the establishment clause is violated, many of which are out of favor with the kind of conservative Republicans who currently dominate the Supreme Court.

In 1971, for example, the Court decided Lemon v. Kurtzman, which laid out the framework that dominated establishment clause cases for many decades. Under Lemon, all laws must have a “secular legislative purpose,” the government may not take actions which have the primary effect of advancing or inhibiting religion, and the government may not foster an excessive “entanglement with religion.”

But at least two of the justices, Neil Gorsuch and Brett Kavanaugh, spoke openly on Monday about their belief that Lemon should be abandoned — or even suggested that Lemon has already been overruled. Kavanaugh claimed that Lemon has not been applied “for several decades,” and suggested that it should now be treated as completely defunct.

These same two men were equally dismissive of an alternative test, known as the “endorsement test,” which prohibits the government from endorsing a particular religious viewpoint. Such endorsements, Justice Sandra Day O’Connor explained in a 1984 concurring opinion, send “a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”

It’s easy to see how Kennedy’s actions violate this endorsement test, as his prayers rather obviously endorsed a religious viewpoint while Kennedy was coaching a football team on behalf of the state. But, after the Kennedy oral argument, it appears reasonably likely that the Court will formally abandon the rule against endorsement altogether.

If the Court does abandon Lemon and the endorsement test, there’s still a third test, known as the “coercion test,” which prohibits the government from coercing individuals into religious exercise. This rule against coercion is likely to remain in effect after Kennedy, though in a somewhat weakened form.

Coercion, the Court’s past cases acknowledge, can take many forms. The government might directly pressure someone — a police officer might threaten to arrest anyone who does not say a particular prayer, for example, or a math teacher might threaten to flunk any student who does not attend the teacher’s church. Decisions like Lee establish that the government also cannot engage in “indirect” coercion, such as when public school officials host events that actively promote religion. And these cases also establish that public schools have a particular obligation to avoid activity that could subtly apply religious pressure to students.

In Lee, a public middle school invited a rabbi to deliver prayers at the school’s graduation ceremony. The Court held that this sort of school-sponsored prayer is not allowed. “The undeniable fact,” Justice Anthony Kennedy wrote in Lee, “is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction.”

It’s unlikely that there are five votes, even on this Supreme Court, to permit a public school teacher to explicitly threaten to flunk a student — or to permit a coach to explicitly threaten not to allow a student to play in a football game — because that student refuses to join the teacher or coach in a prayer. And there probably also won’t be five votes to overrule Lee’s holding that some forms of subtle religious pressure are not allowed.

At one point, for example, Kavanaugh disclaimed any desire to overrule Santa Fe Independent School District v. Doe (2000), a follow-up case to Lee, which held that a school district could not broadcast a student-led prayer over the school’s public address system before each varsity football game.

But, while the Court is likely to leave at least some safeguards against religious coercion in place, it’s also likely to diminish those safeguards in order to rule in favor of Coach Kennedy. That wouldn’t necessarily allow someone like Kennedy to explicitly tell students that they must pray with him if they want to play in the next game, but such threats don’t need to be explicit in order to pressure students into complying with a coach’s implied wishes.

Coach Kennedy is likely to prevail, despite the fact that existing law cuts against him

There’s very little doubt that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch will rule in Kennedy’s favor. Indeed, Alito spent much of the argument implying that Lee should be overruled and that teachers should be allowed to pressure their students into religious exercise.

Alito compared Kennedy’s actions to a teacher who displays political signs at their own house — suggesting that it would be untenable for the Court to forbid a teacher from doing so, even though students who are aware of their teacher’s political views might feel pressured to echo those views in class.

Kavanaugh also seems like a very likely vote for Kennedy. Though he did ask some questions expressing sympathy for the student who thinks that if they don’t participate in a coach-led prayer, then they won’t be allowed to start in the next game, Kavanaugh ultimately came to dwell on a hypothetical about a coach who subtly makes the sign of the cross before each game.

According to Richard Katskee, the lawyer for the school district, a coach making a subtle sign of religious devotion is quite different from a coach ostentatiously walking to the middle of the field and making himself the “center of attention” with a very public prayer — the former is likely to be unnoticed by spectators and students, while the latter is far more likely to convey the message that the school’s football program favors Christians. But Kavanaugh appeared unconvinced by this argument.

That means that, in order to prevail, the school district needs to hold onto the Court’s three liberals (all of whom are likely to vote with the district), plus Chief Justice John Roberts and Justice Amy Coney Barrett.

Roberts may very well be in play — his questions largely focused on the extraordinary efforts Kennedy took, not just to make sure that his prayer would be very public, but to publicize his conflict with the school district in the press. The implication appeared to be that Kennedy perhaps should have made less of a scene.

Barrett’s questions, meanwhile, were a bit more ambiguous. She expressed some sympathy for the chief’s concerns, but also implied at one point that the establishment clause may not apply at all to Kennedy’s actions.

But while Barrett’s questions may leave the school district with a glimmer of hope, she’s been a reliable vote for the Christian right in the past. Given her past record, it would be genuinely surprising if she does not rule in Kennedy’s favor.

Ultimately, in other words, the Court appears very likely to cut back on the establishment clause — although it remains to be seen how deep the cut will be.

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