April 14, 20223:01 PM.
BY DAHLIA LITHWICK AND MARK JOSEPH STERN.
Summerville High School's head football coach John McKissick leads the team in a prayer in Summerville, South Carolina.
Summerville High School’s head football coach John McKissick leads the team in a prayer in Summerville, South Carolina. Randall Hill/Reuters
On April 25, the Supreme Court will hear Kennedy v. Bremerton School District, a case that was carefully engineered to return prayer to public schools. Kennedy marks an effort to overturn nearly 60 years of precedent protecting schoolchildren from state-sponsored religion by flipping the First Amendment on its head. The case erases the rights of children who wish to avoid religious coercion at school, fixating instead on the right of school officials to practice their religion during the course of their formal duties. It is the culmination of a decadeslong battle to reframe government neutrality toward religion as unconstitutional discrimination against people of faith. And it is chillingly likely to succeed.
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It would be a mistake, however, to view Kennedy as a mere doctrinal shift in constitutional law, as radical as that doctrinal shift would be. This case is also the product of the Republican political campaign aimed at restoring public schools’ authority to indoctrinate students with Christianity. The campaign is on the brink of success in the courts because proponents of school prayer have perfected a tactic that reverses the victim and offender.
Today, school officials who coerce students into prayer go on the offensive, claiming that any attempt to halt their efforts at religious coercion is actually persecution of their religious beliefs. Supervisors, lawmakers, and judges who attempt to shield children from being indoctrinated are recast as anti-Christian bigots.
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If there were any doubt about this inversion of the First Amendment, the House of Representatives recently decided to dispel it. Late last month, the House was considering a bill to name a federal courthouse in Florida after Joseph W. Hatchett, the first Black man to serve on that state’s Supreme Court.The bipartisan bill was sponsored by Florida’s two Republican senators and backed unanimously by its 27 House members—until, suddenly, it wasn’t.
With little notice and nothing more than a 23-year-old news clipping, a right-wing, first-term congressman mounted an 11th-hour effort on the House floor to persuade his colleagues that Judge Hatchett, a trailblazing judge who broke barriers as the first Black State Supreme Court justice south of the Mason-Dixon line, was undeserving of being honored.
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The 23-year-old news clipping? It was a brief account of a decision Hatchett had written in 1999 as a judge on the 11th U.S. Circuit Court of Appeals. His opinion struck down a policy allowing student-approved prayers at public school graduation ceremonies in Florida as a violation of the First Amendment’s establishment clause. Republican Rep. Andrew Clyde of Georgia, disgusted by this outcome, circulated the article to every Republican member of the House ostensibly under the theory that they should be aware of Hatchett’s alleged anti-religious animus before honoring his memory with a courthouse.
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In reality, the pioneering Hatchett—an army veteran who faced racial segregation when he took the bar in 1959—ruled in that fashion because he was obligated to. Ample Supreme Court precedent, most notably the 1992 decision Lee v. Weisman, barred sectarian prayer in public schools. In 2000, SCOTUS would also vindicate Hatchett in Santa Fe Independent School District v. Doe, a 6–3 decision holding that a school district policy allowing even student-led prayer at football games violated the constitutional separation of church and state.
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This vindication didn’t matter. To Clyde and many of his Republican colleagues, applying precedent that limited school prayer was an unforgivable sin that marred an entire legacy. So unforgivable, in fact, that it disqualifies Hatchett from respect and commemoration as a civil rights hero who broke down racial barriers at every turn in his long career, desegregating two different courts in the Deep South.
How did we get here? To start, we have to turn back to Kennedy, a case that clarifies, with depressing topicality, the vilification of Judge Hatchett. Joe Kennedy was a football coach in Washington state who led explicitly religious prayer circles with students at the 50-yard line after games. When the school district discovered this conduct in 2015, it repeatedly sought to accommodate his beliefs, asking him to pray in a less public location to avoid conveying the school’s endorsement of his beliefs. Kennedy refused, instead hiring lawyers at the far-right First Liberty Institute to threaten the school with a lawsuit.
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He and his lawyers then launched a media blitz, falsely claiming that he had been persecuted for quiet, private prayer. School district officials were inundated with hateful threats from the public. His postgame prayer circles then became a spectacle, with media and spectators rushing onto the field to watch or join. At one game, students racing from the stands tripped over cables and knocked over members of the school band; parents later complained about the “stampede” threatening their children’s safety. In effect, Kennedy had hijacked the school’s football games to pray with team members in the most public manner conceivable. After he refused multiple offers of potential accommodations, the school placed him on paid administrative leave.
The next year, he did not apply for a contract renewal—then falsely claimed that he had been fired. Kennedy later sued the school for violating his First Amendment rights.
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Ultimately, the Supreme Court is going to rule in Kennedy’s favor. When the case first came up on appeal, in 2019, Justices Sam Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh all signaled their belief that the school district had violated Kennedy’s rights. They only punted due to “unresolved factual questions.”
These justices, now joined by Amy Coney Barrett, have jacked up their rhetoric about government “discrimination” against religious speech and exercise in the intervening years. They have demanded special rights for religious groups and individuals while insisting that the separation of church and state is actually unconstitutional. Under this view, the government is not barred from endorsing or coercing religion in schools; it is required to do so.
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Kennedy takes this principle to its logical extreme. The court appears likely to hold that the First Amendment does not prohibit school officials from praying publicly on the job—but rather protects their ability to intermingle church and state, whatever the impact on students and their parents.
Lost in this establishment clause rebrand are the voices of students who do not share officials’ beliefs but feel pressured to endorse them anyway. The Supreme Court was keenly concerned about such children in Lee and Santa Fe, identifying an overwhelming government interest in protecting children from religious coercion with an eye toward the type of state-sponsored religious indoctrination that animated the Framers. Now, the rights of those students have been scrubbed from the constitutional calculus.
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But even if SCOTUS no longer cares about them, they still exist. As Kennedy martyred himself in the media, parents revealed to the school that their children were extremely uncomfortable with his prayer circles. At least one member of the football team felt obligated to join Kennedy’s prayers because he feared that otherwise, “he wouldn’t get to play as much.” Other members participated only because “they did not wish to separate themselves from the team.”
The prayer circle, in short, created favored insiders (Christian believers) and alienated outsiders (everybody else). This dynamic is not only offensive to religious freedom; it also has a uniquely pernicious impact on children. As a group of psychology and neuroscience scholars explained to the court, coaches have a powerful effect on the behavior of the student athletes in their charge, athletes who crave their approval and support. Adolescents also have “heightened neurobiological sensitivity” to rewards in the presence of their peers, which makes them especially “susceptible to social conformity.” Kennedy did not have to explicitly force his students to join him in prayer; the intense social pressures were enough to coerce them into joining.
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It is astonishing to contemplate that at the precise moment in which American parents are demanding access to the books their children are reading and video surveillance of public school educators, the rights of those parents who don’t believe that public school should privilege certain majoritarian religious viewpoints are poised to be eradicated at the Supreme Court. But in a sense, it’s not surprising at all. As those who want to banish Judge Hatchett’s entire historical and legal legacy based on a single opinion would tell you, reinjecting express religious indoctrination into public schools has nothing to do with the Constitution. It has everything to do with political power, and the way in which courts and Congress can wield it to refashion coerced Christian conformity into religious liberty.
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