The Establishment Clause

Published by Minnesota Atheists on

SCOTUS Takes Aim at the Wrong Basket

By George Francis Kane

Head shot of George, smiling in jacket and tie.

Women’s basketball fans celebrated the South Carolina Gamecocks’ 64–49 thrashing of the UConn Huskies to win the NCAA women’s basketball championship. I stopped following the tournament when Stanford was knocked out, and knew nothing of the South Carolina powerhouse. I was dismayed to read that the team’s coach, Dawn Staley, is notorious for using her prominent position to promote her Christian religion.

She posts a “gameday devotional” on her social media, which she reads to her players. In her posts she portrays her team as representing Jesus, such as calling the championship game “Jesus versus Connecticut.” The Freedom from Religion Foundation last year complained to the university that Coach Staley using her position in a public institution for proselytizing violates the Establishment Clause of the first amendment.

Coaches of school sports teams often have a major effect on impressionable young players. It is important to them to win their coach’s approval, as they may feel that it may affect their playing time. The courts have therefore consistently held that public high school coaches may not lead team prayers.

For that reason, it is surprising that the Supreme Court has taken up the case of Kennedy v. Bremerton School District, about a football coach who led team prayers at the 50-yard line after games. What more is there to decide? Thirty years ago, the Court ruled in Lee v. Weisman that a public school’s actions must not “coerce anyone to support or participate in a religious exercise.” It has also ruled that teachers and coaches are representatives of government when they are engaged in their school duties and are under Establishment Clause restrictions. Also, that children are especially susceptible to religious coercion, so their religious freedom must be most strictly protected.

What is more, the court should dismiss the case as moot. When Coach Joe Kennedy was fired by the school district in 2015, he moved across the nation from Washington to Florida. Kennedy’s claim that if the Court reinstates him, he will return to Washington state for a job that pays just $5,304 a year is transparent posturing. His only objective is to get the ban on public school-led prayer overturned. Kennedy has become a beloved martyr on the Christian right and was extolled by President Trump in a speech on Religious Freedom Day in 2020.

Dishonesty runs throughout this case. Kennedy claims that he wants only to be able to kneel in prayer, silently and alone, for a few seconds, but he has rejected all offers by the Bremerton School District to accommodate him. They offered to let him use a schoolroom after the game to pray, or to wait until after the stadium emptied to pray at the 50-yard line. But no offer was enough for him that was less than leading his team in prayer in full public display. The 9th Circuit Court of Appeals called his claims of religious suppression a “deceitful narrative.”

Let’s return to the question of why the Supreme Court has granted a hearing to such a weak case. Since it has been reconstituted with a 6–3 conservative majority, the Court has demonstrated the intent to reverse a half-century of clear and consistent Establishment Clause precedent. The common understanding of it is that government must stay out of religion, that government must be neutral and favor no religious views over any other. But in Township of Greece v. Galloway, the court upheld invocations at town council meetings, even though they were nearly exclusively Christian. In Espinoza v. Montana Department of Revenue, the court ruled that state benefits that are offered to any group cannot be denied to religious organizations, making taxpayers support religious instruction. American Legion v. American Humanist Association requires taxpayers to maintain a religious monument. In all these cases, the court is requiring active government support of religion.

The court is selecting cases that enable it to erode the separation of church and state and require government to support religion.

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