Saturday, April 16, 2022

Supreme Court School Prayer Case About to Fizzle?

          The religious right may be on the verge of a major disappointment in its effort to insinuate school-sponsored prayer into public schools despite precedents dating over six decades to protect students from school-sponsored religious indoctrination.

            An array of so-called religious liberty organizations rallied around a high school football coach after the local school district suspended him for conducting post-game prayers with his team in defiance of instructions from school district officials. Joe Kennedy argued that the suspension violated his freedom of speech and his free exercise rights to conduct what he characterized as private prayer, despite the public setting.

            The Court is scheduled to hear oral arguments in the case, Kennedy v. Bremerton School District, on Monday, April 25. In a late filed motion, however, the school district is urging the Court to dismiss Kennedy’s appeal as moot because he moved to Florida two years ago. In challenging the school district’s action, Kennedy asked for a declaratory judgment and an injunction returning him to the coaching position, but he did not ask for monetary damages.

            The school district argued in the Feb. 15 filing designated as “suggestion of mootness” that Kennedy no longer has standing to press his case because he cannot return to the coaching position even if the Court were to order the school district to hire him back. Kennedy explained in response that he and his wife relocated temporarily to Florida to care for her ailing father and that he will return to Bremerton if he is reinstated to the coaching position.

            Before this new development, two of my press corps colleagues, Dahlia Lithwick and Mark Joseph Stern, persuasively explained the high stakes in the case for protecting public school students from school-sponsored religious indoctrination. Their article in the on-line magazine carried this headline, “How the Right Is Bringing Christian Prayer Back Into Public Schools” [April 14].

Lithwick and Stern explain the specious argument that Kennedy and his legal allies make in defense of his post-game prayers. “The case erases the rights of children who wish to avoid religious coercion at school, fixating instead on the right of school officials to practice their religion during the course of their formal duties,” Lithwick and Stern write. “It is the culmination of a decades-long battle to reframe government neutrality toward religion as unconstitutional discrimination against people of faith. And it is chillingly likely to succeed.”

In fact, four justices – Thomas, Alito, Gorsuch, and Kavanaugh – signaled support for Kennedy’s case when his legal team first brought the case to the Court. On a second round, the Court granted certiorari on January 14, 2022, setting the stage for oral arguments in April and a decision by the end of June. With Justice Barrett’s appointment, Kennedy seems very likely to prevail with five votes if the Court rules on the merits.

            Kennedy’s final reply brief, filed on April 15 by his counsel of record, Paul Clement, does not address the mootness issue. The brief does not note that Kennedy and his family relocated to Florida two years ago, even as an array of organizations on the religious right were pushing his case toward the Supreme Court.

            The school district has drawn support for its position in amicus briefs from, among others, the American Civil Liberties Union (ACLU), Americans United for Separation of Church and State, and a dozen well-known church-state scholars. The scholars’ brief persuasively explains that the arguments in Kennedy’s behalf  “offend settled precedent concerning religious liberty, freedom of conscience, and religious equality in public schools.”

            The case, according to the scholars, poses this fundamental question: “whether the Court will hold true to precedents ‘protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools,’” quoting from Lee v. Wiseman (1992). In fact, some of the Bremerton teammates testified that they joined in Kennedy’s prayer circle because they feared they would get less playing time by not joining in.

            Kennedy’s argument, the scholars explain, “amounts to a direct assault on the line of cases originating with Engel v. Vitale (1962),” referring to the first of the school prayer cases from the 1960s. The scholars also criticize what they call Kennedy’s “maneuver” to cast himself as victim. “Petitioner seeks to characterize Respondent’s concern for the religious freedom and equality of its students as nothing more than hostility to his own religious practice—a move that turns on its head decades of well-reasoned school prayer jurisprudence.”

            The scholars go back even further into Supreme Court history to cite the oft-quoted phrase from Justice Robert Jackson in the second of the flag salute cases, West Virginia State Board of Education v. Barnette (1943). “If there is any fixed star in our constitutional constellation,” Jackson wrote, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

            The Court’s jurisprudence on legal standing clearly supports a finding of mootness in Kennedy’s case, but the conservative justices – beholden to the so-called religious liberty groups that supported the confirmations of Trump’s three justices – may well be tempted to overlook those precedents and instead reach out to rule in Kennedy’s favor. The arguments next week [April 25] will pit Clement on Kennedy’s behalf against Richard Katzkee, legal director for Americans United on behalf of the school district.

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