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Opinion The Supreme Court punts on religious liberty

Joseph Kennedy, a high school football coach who was fired after praying on the field with players, takes a knee in April in front of the Supreme Court after his legal case was argued. (Win Mcnamee/Getty Images)
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Public schools are sites of religious and cultural conflicts because parents care passionately about the values passed on to their children and because the word “public” implies democratic control.

And sports teams are a rallying point for loyalty to these institutions because the competition among school teams brings student-athletes and parent-fans together. Parents don’t watch their kids learn math or history. They do cheer, together, at fields and in gyms.

So it should not surprise us that when the Supreme Court rendered a precedent-shattering decision on religion in June, the case involved a football coach in Bremerton, Wash., who gathered with players in prayer at the 50-yard line after games.

The area’s school board — in keeping with roughly 60 years of jurisprudence — said the coach, Joseph Kennedy, was in violation of the legal principle that school officials should not, either directly or indirectly, impose their religious views on students. The court’s 6-to-3 conservative majority disagreed, insisting that Kennedy’s act of praying was protected by the First Amendment.

This decision was a mistake — not because public schools should be devoid of any religious expression but because students should not feel pressure from their teachers, administrators or coaches either to be or not to be religious, let alone subscribe to a particular faith.

Opinion: Trying to protect students from a coach’s prayers did them no favors

Justice Neil M. Gorsuch’s opinion for the majority pretended that a coach’s prayer right after a game was an entirely private action — “he offered his prayers quietly while his students were otherwise occupied,” Gorsuch wrote — when, in fact, it was a highly public display.

Justice Sonia Sotomayor brought home the factual absurdity of Gorsuch’s claim by taking the unusual step of including photos in her dissent. They showed a large group of players surrounding the coach as he prayed. Yes, they just might have felt a bit of pressure to join him.

“Today’s decision is particularly misguided,” Sotomayor wrote, “because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection.”

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My concern about this decision stems not from hostility to religion but from the opposite impulse. The surest way to inspire resentment of faith’s public role is to upset the careful balance the First Amendment requires and ignore the rights of religious minorities, including those who reject faith altogether.

The First Amendment’s religion clause guarantees freedom of conscience and belief by stressing two imperatives: The government can’t pass a law that would effect the “establishment of religion” but neither can it interfere with its “free exercise.”

Acknowledging “the tension” between the amendment’s establishment and free exercise clauses, Sotomayor wrote, is at the heart of protecting religious liberty.

The school district, she argued, “was happy to accommodate Kennedy’s desire to pray on the job in a way that did not interfere with his duties or risk perceptions of endorsement” of his particular faith. But the court majority pretended there was no tension at all, partly by distorting the facts of the case.

The ruling will exacerbate divisions on an issue around which people of good will have found ways to take seriously the concerns of both religious and secular people.

A better path was blazed by one of the unsung achievements of Bill Clinton’s presidency, a consensus-building exercise on the role of religion in public schools. The effort drew on views across the lines of philosophy and theology to assert that religious students have important rights but that as government-run institutions, the public schools cannot impose religious views on anyone, directly or indirectly.

The result was the Memorandum on Religious Expression in Public Schools, issued in July 1995, that detailed the religious rights of students and the obligations of educators and administrators.

On the one hand, it insisted that “nothing in the First Amendment converts our public schools into religion-free zones, or requires all religious expression to be left behind at the schoolhouse door. While the government may not use schools to coerce the consciences of our students, or to convey official endorsement of religion, the government’s schools also may not discriminate against private religious expression during the school day.”

At the same time, the memorandum went on, the “right to engage in voluntary prayer or religious discussion free from discrimination does not include the right to have a captive audience listen, or to compel other students to participate. Teachers and school administrators should ensure that no student is in any way coerced to participate in religious activity.”

The underlying message of mutual respect here is one the court should have taken more seriously. We have enough problems in our public schools. We don’t need to turn them into religious battlefields.

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