IN A decision representing the will of its conservative super-majority, the United States Supreme Court ruled last week that a high-school football coach, Joseph Kennedy, who knelt and prayed on the field after games, was protected by the constitutional guarantee of free speech (News, 1 July).
School officials had warned Mr Kennedy that his prayers on the 50-yard line, joined by student athletes, violated the Constitution’s ban on the “establishment of religion”. When he refused to desist, he was fired. His case, challenging his dismissal, eventually reached the Supreme Court.
Mr Kennedy’s case was an instance of the tension between the right of free speech guaranteed by the First Amendment of the Constitution, and the Establishment Clause of the First Amendment, which states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The scope of the First Amendment was subsequently extended to state and local governments, and, since 1962, interpreted in a series of Supreme Court rulings, to prohibit prayer in public (state) schools.
Before the 1962 ruling, most elementary-school students began the day with a school assembly that involved Bible-reading and prayer, as well as a homily by the principal on topics of concern, including bicycle safety and graffiti in school bathrooms. The Court ruled that, since students’ participation in such religious exercises was not voluntary, it violated the Constitutional prohibition on the establishment of religion.
THE Kennedy case turned on the question whether students’ participation in his prayer sessions was voluntary. Did the Bremerton School District, in Washington State, Mr Kennedy’s employer, violate his First Amendment rights to freedom of speech and the free exercise of religion? Or did his exercise of religion on the football field violate the First Amendment prohibition on the establishment of religion?
Writing for the majority, Justice Gorsuch declared that participation in Kennedy’s religious exercises was strictly voluntary and did not, therefore, constitute the constitutionally prohibited establishment of religion. Mr Kennedy, he declared, prayed during a period when school employees were free to attend to other matters, and students were otherwise occupied.
Justice Sotomayor, in dissent, argued that joining the coach in prayer was not strictly voluntary. Football players in Kennedy’s charge, she wrote, “recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in athletic college recruiting”.
This is no small matter. In the United States, the costs of college are prohibitive: at my university, $72,033 per year — well beyond the 2021 median US household income of $67,520. Competition for college athletic scholarships to cut costs is a high-stakes game. For students who believed, rightly or wrongly, that their college prospects depended on staying in Mr Kennedy’s good graces, participation in his prayer sessions was, effectively, coercive.
Nevertheless, students and the members of the local community did not object to Mr Kennedy’s practice. Like those Christians who, during the Decian persecution, offered a pinch of incense to the gods to get libelli certifying compliance with government regulations, they viewed participation in the coach’s prayer sessions as an innocuous exercise of civic religion.
Secular progressives, who regarded religious practice as inherently offensive, imagined that permitting such activities would push the country down a slippery slope to theocracy. And Justice Sotomayor, writing that the Kennedy decision “sets us further down a perilous path in forcing states to entangle themselves with religion”, echoed their sentiments.
ARGUABLY, it is unlikely that allowing public prayer on the football field or elsewhere will promote the imposition of the substantive disabilities on women and LGBT people that religious conservatives favour, or policies that put religious minorities at a material disadvantage. And it is highly unlikely that prohibiting public religious ceremonies or other symbolic gestures will prevent conservatives’ instituting policies that set back the material interests of women and minorities.
For years, progressives have busied themselves with trivialities and symbolic gestures, including the use of gender-neutral pronouns and the removal of nomenclature deemed offensive to minorities, which provided no material benefit to disfavoured groups. Occupational sex segregation is unabated, racial discrimination persists, and schools, renamed to respect the supposed sensitivities of racial minorities, are more segregated than ever.
Progressives will not tolerate innocuous religious ceremonies and religious symbols in public places, including Christmas nativity scenes in parks and mountaintop crosses on public land — both currently illegal. But they have shown little interest in challenging churches’ tax-exempt status and no success in derailing the religious Right’s substantive agenda.
Even if Mr Kennedy’s religious exercises were coercive, they were innocuous. For believers, they were prayer; for others, they were harmless, empty ceremonies. Some may find public prayer offensive and decline to participate. Arguably, however, the business of the State is to promote equity and material well-being — not to prevent offence or to accommodate delicate sensibilities.
Dr Harriet Baber is Professor of Philosophy at the University of San Diego, California, in the United States. She writes at hebaber.substack.com.