While a Christian high school football coach claimed his win at the U.S. Supreme Court this week as a victory for religious freedom, advocates for some religious groups with fewer adherents in the United States are concerned it could have the opposite effect, especially if schools apply the ruling inconsistently.
In a 6-3 decision in Kennedy v. Bremerton School District Monday, the court held that Washington state football coach Joseph A. Kennedy’s practice of kneeling on the 50-yard line in post-game prayer was private speech protected by the First Amendment’s free speech and free exercise of religion clauses.
Kennedy was often joined by players and community members. The Bremerton, Wash., school district, fearing his practice could be seen as government-sanctioned speech, had asked him to pray alone or in a more private place.
Some groups representing American Jews and Muslims said this week they fear the court’s decision will create complicated questions for schools.
A key concern: finding the line between protected private speech and religious activity that could be seen as coercive, particularly for irreligious students or students from minority religious groups, who may view participation as necessary to win favor from adults in authority.
“We know if a Muslim teacher does what this coach did, it could spark a very different reaction, but he or she has the right to do it now,” said Edward Ahmed Mitchell, national deputy director of the Council on American-Islamic Relations, which advocates for civil rights for Muslim Americans.
“Will this be equally applied to all people? And will students be protected [from pressure or coercion]? Those are the two questions,” he continued.
The ruling “leaves a lot of questions unanswered,” said David Barkey, religious freedom counsel for the Anti-Defamation League, which advocates against anti-Semitism and discrimination.
The ruling essentially overrides the previous court ruling Lemon v. Kurtzman, the 1971 Supreme Court decision that set forth a three-part test for examining government endorsement of religion, and it provides less clarity about how schools should weigh the religious liberty of students and employees, Barkey said.
In a statement, the Anti-Defamation League argued the decision “will open the door to organized prayer in schools and hinder future challenges to religiously coercive activity.”
Would a Muslim coach get the same treatment?
CAIR emphasized the need for equal treatment after the court’s ruling.
By the court’s standard, an observant Muslim football coach could break his Ramadan fast on the sidelines of a football field during a game, Mitchell said. Breaking such a fast usually occurs within a 15-minute window, and observant students who are also breaking their fasts may choose to pray alongside him as their religion directs them to, Mitchell said.
By the court’s ruling, such prayer would be permissible as long as other students didn’t feel pressured to join in or penalized if they choose not to, he said.
“In theory, if a school is acting in good faith and treating all equally, there’s not going to be a problem,” Mitchell said. “But people are imperfect beings. We could see some potential conflict about where that line is.”
Some faith-related groups had voiced strong reservations in advance of the court’s ruling.
In a friend-of-the-court brief filed while the court considered the case, 34 organizations representing various religions noted previous cases where students from minority religions felt bullied and targeted by their peers after they opted out of pre- or post-game prayers.
In 2008, two Jewish cheerleaders in East Brunswick, N.J., were the target of harassment and anti-Semitic internet posts after they reported discomfort with a coach’s pre-game prayers.
Bremerton is in an area with Baha’i’s, Buddhists, Muslims, Jews, Hindus, Sikhs, Zoroastrians, and Christians of various denominations and customs, the brief notes.
“Student athletes face intense pressure to violate their religious consciences by joining public prayers chosen by their coach,” the friend-of-the-court brief said.
Schools face complicated questions about religion after ruling
In his majority opinion, Justice Neil M. Gorsuch argued that Kennedy was not acting as a school employee when he prayed because his prayers occurred during “a brief lull in his duties” that “apparently gave him a few free moments to engage in private activities.”
“He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach,” Gorsuch wrote.
The district violated Kennedy’s constitutional rights by singling out his religious practice as more problematic than any other personal speech that may have occurred during that time, Gorsuch wrote.
Some educational and religious groups predict new, complicated questions about when school employees’ religious practices are appropriate.
Prior to the ruling, the Baptist Joint Committee for Religious Liberty had argued in a friend-of-the-court brief that Kennedy’s prayers put more “genuine pressure” on students to participate than a teacher choosing to wear a hijab or quietly praying over their food during personal time in the school cafeteria. Students could easily recognize the latter practices as personal choices, the brief said.
In response to the ruling, Holly Hollman, general counsel of the committee, said in a statement, “This Court pays lip service to religious freedom but throws out any concern about avoiding government pressure on students.”
Mitchell, of CAIR, said schools need to approach their employees’ religious practices through one-on-one conversations, seeking to accommodate their needs without infringing on students’ rights.
“A lot of this depends on a case-by-case analysis,” he said. “A lot of this is a judgement call. Even though we’ve had a First Amendment for the entirety of our nation, there are cases where it’s still up for debate about what it means.”