Supreme Court Religious Decisions (Coach Kennedy; Maine school stipend)

 If I favor Supreme Court decisions protecting freedom of religion, I think my opinion is noteworthy because I am agnostic.  Clearly, I am not taking a stance that will work to my personal benefit.  It seems clear that I am evaluating based on principle.

I acknowledge that some members of my family have strong religious beliefs and that some attend religious schools, but none are in situations that would be affected by these rulings.

Kennedy v. Bremerton School District

The facts of the case are clear and agreed to, by all parties. 

1.      Coach Kennedy continued some unconstitutional practices that had been going on before he arrived at the school, and he added some unconstitutional practices of his own.  After many years without incident, the school district insisted that he stop such actions and he complied.  The case is NOT about that activity.

2.      Coach Kennedy subsequently took 30 seconds to pray silently at mid-field after the football games, not in the company of students.  For that, he was fired.  The case relates to these prayers and his firing.

It seems odd to argue that his personal silent 30-second prayer away from his players was an example of government establishment of a religion.  If so, what religion?  How would a “reasonable observer” know for sure that he was praying?  If the observer presumed he was praying, to which God was he praying?  Might he have been praying to Pokemon gods?

The first amendment reads: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

No party related to this case has noted that the first amendment refers only to Congress.  Apparently, it has been broadly accepted to restrain the actions of any government entity.

Clearly, all these restrictions are intended as a package to protect each individual’s right of freedom of religion.  The School District perceived a potential conflict between Coach Kennedy’s rights and the rights of his students.  How were his students’ religious rights harmed by his actions?  They were off singing the school fight song when he said his silent 30-second prayer.

The School District maintained that a reasonable observer could (mistakenly) infer that the District endorsed Mr. Kennedy’s message.  I question whether a reasonable observer would reach such a conclusion and if they did, the School District could clarify that it did not endorse any religion.  Beyond those counterarguments, I wonder what “message” was being endorsed.  Again, both parties agree that he was silent for about 30 seconds, separate from his students.  How does that establish a religion?  What message does that convey?

The Court ruled that Coach Kennedy engaged in “private speech” done alone on private time.  Despite wild claims to the contrary from some conservatives and some progressives, the ruling clearly does not permit school employees to lead students in prayer at school.

Justice Sonia Sotomayor’s dissent seems embarrassing.

She continually cites Coach Kennedy’s previous actions which are not part of the case.  He had ceased all the practices that were unconstitutional, and the School District had acknowledged so.  Those previous actions were not related to his dismissal.  Yet, Justice Sotomayor wrote:

·        “this Court consistently has recognized that school officials leading prayer is constitutionally impermissible”

·        “The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field.”

·        “Kennedy consistently invited others to join his prayers and for years led student athletes”

·        “The other team’s coach told the principal that he thought it was ‘cool’ that the District “would allow [its] coaches to go ahead and invite other teams’ coaches and players to pray after a game.”

·        “The District Court found, in the evidentiary record, that some students reported joining Kennedy’s prayer because they felt social pressure to follow their coach and teammates.”  This argument has a particularly interesting flaw (besides being irrelevant because it is unrelated to the behavior in question in this case).  Clearly, we want to avoid students feeling coerced by a coach/teacher/etc. to participate in religious activity.  Apparently over the course of all those years when Coach Kennedy did lead players in prayers, the School District was unable to find a single student who felt compelled to participate to please the coach in order to earn playing time, etc.  Some chose to participate because they wanted to be with their friends.  What is the problem here?

·        There may well have been other such comments in her dissent.  I did not try to log them all.

Justice Sotomayor cites “the severe disruption to school events caused by Kennedy’s conduct”.  But the School District acknowledges that Kennedy’s unconstitutional activities went on for many years WITHOUT ANY disruption.  The disruption resulted from the School District dismissing Kennedy.

Ms. Sotomayor points out that “The county is home to Bahá’ís, Buddhists, Hindus, Jews, Muslims, Sikhs, Zoroastrians, and many denominations of Christians, as well as numerous residents who are religiously unaffiliated.”  Someone walking on the scene might infer that Coach Kennedy was praying but they would not know to which God.  Contrast that with a Muslim who prays to Mecca or wears a hijab.  In those cases, it is clear that the behavior reflects Islamic faith.  Should the Muslim behavior be disallowed?  Is wearing a chain with a cross disallowed?  I don’t think such behavior should be disallowed.  If such behavior should not be disallowed, then clearly Coach Kennedy’s behavior should not be disallowed.

 

Sources:

https://apnews.com/article/fact-check-supreme-court-coach-prayer-schools-602630743738

https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf

 

Carson v Makin (Maine grants for students not supported by public schools)

Maine is the most rural state in the USA.  Some areas find it non-economic to provide public education, so the state provided $12,000 for each student, but restricted use to non-sectarian schools.  29 private schools participate in the program, enrolling 4,526 students.

It seems quite clear that this discriminates against religious schools, as the Supreme Court appropriately observed. 

The Supreme Court dissent by Justice Breyer argued that, by allowing money to be used in a religious school, the state would be establishing a religion.  To me, this argument holds no water:

1.      It does not specify any particular religious school.  A student could attend any qualified school, regardless of religion.  So, how is it establishing a religion?

2.      A student can select any non-sectarian private school, hence is not forced to attend a religious school at all. It is only at the student’s volition that the student attends a particular religious school.  The state has not established that school, the student has exercised his/her own free will.

3.      I think a student could also opt to attend a non-local public school.

Further, Justice Breyer argued that excluding religious schools was helpful in “avoiding religious strife”.  Au contraire, the only related “religious strife” was caused by the state’s exclusion of religious schools.

As the Supreme Court pointed out, the state could offer other alternatives, such as remote learning, local public education, improved transportation to other public schools, or even boarding schools.  Such activities would not unfairly discriminate against religious schools.  The unfair discrimination occurred when the state chose to support private nonsectarian schools but not private religious schools.

The Supreme Court clearly did not suggest that states need to support religious schools.  The Court solely said that if state or local government decides to allow public money to pay for education at private schools, it cannot discriminate based on religion.

This case is consistent with two other recent cases, appropriately decided:

a) Trinity Lutheran Church v. Comer, in which the justices ruled that Missouri could not exclude a church from a program to provide grants to non-profits to install playgrounds made from recycled tires

b) Espinoza v. Montana Department of Revenue, holding that if states opt to subsidize private education, they cannot exclude private schools from receiving those funds simply because they are religious.  (essentially an identical case)

Sources:

https://www.edweek.org/leadership/despite-supreme-court-ruling-maines-religious-schools-face-hurdle-to-state-tuition/2022/06#:~:text=The%20Supreme%20Court%20ruled%20Tuesday,learning%20of%20a%20new%20hurdle 

https://www.scotusblog.com/2022/06/court-strikes-down-maines-ban-on-using-public-funds-at-religious-schools/