A High-School Football Coach Prayed. The Left Is Having None of It

W hen it comes to publications correctly assessing the Supreme Court case Kennedy v. Bremerton School District, left-leaning publications Slate and Vox are currently 0–2. By way of background, the case concerns high-school football coach Joseph Kennedy. Kennedy had taken to praying at the 50-yard line after games — first alone, and then later with significant student involvement. The school prohibited him from making these prayers, eventually firing him when he said he would continue the practice regardless.

In previewing oral arguments heard by the Court last week, Mark Joseph Stern and Dahlia Lithwick distorted the case’s facts and the law to alarm Slate’s progressive readership. (Ed Whelan rightly pegged problems with this article when it came out.) In their telling, Kennedy sought to dismantle the First Amendment’s establishment clause, undoing the line between church and state.

Writing a similar description, Vox columnist Ian Milhiser also swings and misses. Though marginally more careful, he, too, seems to think that Kennedy’s case will result in a leap toward some sort of Christian theocracy.

These overwrought takes might multiply clicks, but they fail to illuminate the case law in question. Milhiser, in particular, avoids the central question of the case while sacralizing weak and unused precedents, failing to take on the question of whether Kennedy’s prayer occurred as part of his job.

When Kennedy works as coach of a public-school football team, he necessarily works as a state actor. Those deeds, then, must accord with all the constitutional requirements that bear on the state. Yet Milhiser and company suggest that Kennedy prayed in the line of duty — that is, in his capacity as a public school’s football coach.

That contention certainly aids the school district, given a long line of cases that have held that states cannot actively lead religious exercises. This line of thinking got rid of all forms of school-initiated and school-led public prayers, whether at the beginning of the school day or at graduation ceremonies and sporting events. Moreover, the Supreme Court has said that any official action that coerces students to pray — even subtly — violates the establishment clause as well.

But the facts in Kennedy’s case point in the other direction. Kennedy’s lawyers have argued, convincingly, that his prayer was done as a private citizen. In fact, Kennedy has already ended the potentially suspect behavior (according to precedent) that involved speaking to the players in ways that seemed more akin to instructing them in a religious manner. (Before, he had made motivational speeches to the students in addition to the prayers, which his own lawyer admitted looked more like teaching than private prayer.) The prayer he now asks to give, though, comes once the game has already ended. He led no player over to the 50-yard line. Indeed, the timing of his prayer conflicted with the moment when his own team goes to an end zone to sing the school fight song. He did not initiate any common prayer they all could say together. Those who joined him at all came of their own free choice, not his calling.

Given these facts, the more extreme decision would be for the school, not for Kennedy. It would upend a long-held precedent clearly stated in Tinker v. Des Moines, which said that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The lawyer for the school district seemed open to this upending, saying at one point in his argument, to Justice Barrett’s surprise, that a school employee need not be acting in his or her job rightly to be fired for violating the establishment clause. One can easily see the shedding at the school door that such reasoning would cause.

Milhiser, Stern, and Lithwick also give high honor to precedents that are weak or that have been bypassed, or both. The weak ones concern coercion. All would agree that coercion consists of punishing or threatening to punish persons, in this context, for religious-based reasons. But that is not the coercion these three intend. Instead, they mean the subtleties of supposed psychological coercion. This concept says that religious coercion that violates the establishment clause can include peer pressure or subconscious expectation, which students feel from the school. When this judicial idea was introduced, in 1992’s graduation-prayer case of Lee v. Weisman, Justice Scalia rightly savaged it. Quoting a lower-court ruling, Justice Scalia noted that the judiciary’s establishment-clause jurisprudence resembled “interior decorating.” He said so given how the Supreme Court had assessed religious symbols placed on public property, such as manger scenes at Christmas or Ten Commandment displays at courthouses. He then added, “But interior decorating is a rock-hard science compared to psychology practiced by amateurs.”

The Supreme Court trying to recall the worries of K–12 peer pressure, then turning its avoidance into constitutional law, was no way to construct establishment-clause jurisprudence. It created a standard so subjective that to give it stability required denying any religious liberty to school officials, because any display of religion in front of others could create subtle psychological coercion. To raise it to the level of the highest precedent gives it more credit than it ever deserved.

Milhiser then brings up the Lemon test, named after a three-pronged standard for interpreting whether something withstands scrutiny under the establishment clause, outlined in Lemon v. Kurtzman. In order to survive judicial scrutiny, the Lemon test required that a law have a secular purpose, which would not primarily help or inhibit religion, and wouldn’t excessively entangle the state with religion.

But as Milhiser admits, the Supreme Court has not used this test in a very long time. He further admits that Justices Kavanaugh and Gorsuch noted its silent demise. That was a deserved demise. As with coercion, the standard proved unworkable in any way that respected religious expression. It contributed, even more than the coercion standards, to the confusing mess that is establishment-clause precedent.

In the oral arguments, a majority of the Court seemed willing to make some headway in cleaning up this mess. That included continuing to ignore Lemon and upholding, against far-reaching coercion claims, the religious liberty of school employees.

What will Slate’s and Vox’s take on the Court’s decision be? Remember, three strikes and you’re out.