Supreme Court's Confusing Ruling on Kennedy is a Clear Win for Pluralism
The Supreme Court’s recent ruling that the constitution protected a high school football coach’s right to pray at midfield after his team’s games left many of us confused. Regardless of where you stand on the issue of prayer in schools, this opinion is difficult to interpret because of the starkly different factual narratives contained in the majority decision and the dissent. Nonetheless, these differences might actually be a feature of the ruling, rather than a bug: By narrowly tailoring the set of facts the ruling hinged on, Justice Gorsuch wrote a majority opinion with a minimal ruling, one that’s a win for pluralism and the free exercise of religion.
According to Gorsuch, Coach Joseph Kennedy was simply offering private prayers during a period after the game in which he was free to attend to personal matters. Kennedy had previously led the team in prayer before and after each game, but then ended these prayer sessions at the school district’s request. Spurred by his own religious convictions, however, Kennedy continued to pray at midfield after games, but he publicly advertised that his prayers were private. For this reason, Gorsuch found that Kennedy was offering these prayers privately, not as a government employee.
Justice Sotomayor’s dissent doesn’t argue that Kennedy had no constitutional right to offer private prayers, but simply denies that Kennedy’s prayers can be classified as private. Providing photographic evidence of Kennedy surrounded by players and media during his prayers, Sotomayor argues that Kennedy ran afoul of the establishment clause. His prayers — which he discussed and publicized on Good Morning America — were anything but private.
For school leaders, these competing characterizations don’t provide much clarity on how to handle a case like Kennedy’s. No justice contends that private prayer at school by a school employee isn’t allowed, and no justice contends that public prayer by an employee acting as a school employee is allowed. The question is where to draw the line between the two, and the court’s decision sheds little light on just where that elusive line might be.
Nevertheless, the competing characterizations of the facts might actually be — at least in one sense — a strength, not a weakness. Gorsuch’s tailoring, not misrepresentation, of the facts allowed for an incremental ruling instead of a sweeping one. The court overturned the Lemon test and ruled in Kennedy’s favor but did not do much else. Indeed, those alarmed by the ruling may find solace in this decision: if the court had acceded to Sotomayor’s narrative and ruled for Kennedy, it would have weakened the establishment clause considerably. With Gorsuch’s opinion, however, the court was able to more modestly rule that the establishment clause does not mean there is no quarter for religious exercise, even for public employees on the clock.
The ruling hinges on whether Kennedy’s speech was government speech. It was not. In oral arguments, Justice Thomas asked if a coach taking a knee during the national anthem would be government speech, and the respondent preposterously argued it would be. Taking a knee during the anthem is widely recognized as a private protest, because taking a private stand is the point. Indeed, Kennedy’s prayers were even covered in the media as a private stand, something any viewer of that media coverage would surely recognize.
This ruling is a win for religious pluralism. In an ideal world, Kennedy would be able to offer private prayers after games are over, with no implied government speech and without players feeling coerced to join in. That is what a truly pluralistic society, in which we learn to live with and accept each other’s differences, would look like. The court’s ruling moves us closer to that ideal world by restraining the establishment clause in respect to the other clauses spelled out in the same sentence of the first amendment.
For school district officials Kennedy clearly provides protection for employees’ private religious expression, but it does leave loose ends. In our real, not ideal world, coercion remains a concern: for some high school football players, earning the coach’s approval means everything. Gorsuch does not ignore this concern, but sidesteps it, writing that there was “no indication in the record that anyone expressed any coercion concerns to the District.” The decision leaves it unclear how the court would have ruled if coercion were under issue, but it also keeps the coercion concern in play, without either supercharging or enervating it.
In Kennedy, the court recognizes that the greater coercive threat comes from the state — not the private actions of football coaches. Those threats are not so distant. In Quebec, public employees can’t wear crosses, kippahs, headscarves, or turbans at work. France ban burqas outright. So do Belgium, Demark, Austria, and Switzerland. In the US, such extensive bans of private religious expression for public employees were not an imminent threat before this week, but this ruling makes them still more distant.
Nat Malkus is a senior fellow and deputy director of education policy at the American Enterprise Institute.
