Andrew Koppelman: The Supreme Court and the new religious aristocracy
Koppelman is an opinion contributor for The Hill, who offered some insights about the SCOTUS school prayer decision.
Kennedy v. Bremerton held that football coach Joseph Kennedy had the right to engage in what Justice Neil Gorsuch called a “short, private, personal prayer” on the 50-yard line after games. The court held that forbidding that prayer improperly discriminated on the basis of religion, because employees were allowed to do other personal things with their free time after games. There was no “record evidence that students felt pressured to participate in these prayers” and no evidence that the prayers disrupted the school.
The actual facts are very different.
For years, Kennedy led his players in prayers. When the Bremerton School District learned of this, it told him that he could pray after games, but must do so silently and alone. It was concerned about pressure on the players. The coach has unlimited discretion to decide who plays. Students who don’t play won’t get football scholarships.
The trial judge, whose findings of fact Gorsuch was obligated to accept unless he deemed it clearly erroneous (which he did not), wrote: “Players (sometimes via parents) reported feeling compelled to join Kennedy in prayer to stay connected with the team or ensure playing time, and there is no evidence of athletes praying in Kennedy’s absence. Kennedy himself testified that, ‘[o]ver time, the number of players who gathered near [him] after the game grew to include the majority of the team.’ . . . This slow accumulation of players joining Kennedy suggests exactly the type of vulnerability to social pressure that makes the Establishment Clause vital in the high school context.” Nice starting position you have. Too bad if anything should happen to it.
Gorsuch places great weight on the school’s concession that there was “no evidence that students [were] directly coerced to pray with Kennedy.” That sentence has a crucial legal implication: henceforth, only direct coercion will count. Gorsuch wrote that “the possibility that students might choose, unprompted, to participate in Mr. Kennedy’s prayers [does not] necessarily prove them coercive.”