Originalism and the football coach’s prayer

Joe Kennedy
Joe Kennedy, a former assistant football coach at Bremerton High School in Bremerton, Wash., poses for a photo March 9, 2022, at the school’s football field. After losing his coaching job for refusing to stop kneeling in prayer with players and spectators on the field immediately after football games, Kennedy will take his arguments before the U.S. Supreme Court on Monday, April 25, 2022, saying the Bremerton School District violated his First Amendment rights by refusing to let him continue praying at midfield after games. (AP Photo/Ted S. Warren)

Amid the recent Supreme Court argument over a high school football coach’s demand to lead his players in prayer, the judges lost sight of one of the central purposes of the First Amendment’s prohibition on “establishment of religion” — a purpose that should be of particular concern to the court’s self-styled originalists.

The justices’ questions focused on the importance of avoiding religious conflict and coercion or alienation of religious minorities. The framers of the Constitution, however, had another fear that is often overlooked: the idea that state involvement can corrupt religion by turning it into a  hypocritical sham. That danger now looms. Will the Court even notice?

For years, football coach Joseph Kennedy led his players in prayers. When the Bremerton school district learned of this, it told him that he could pray after games, but must do so silently and alone. He initially complied, but a few weeks later his lawyer told the school district that Kennedy would insist on praying on the 50-yard line, with students joining him if they wanted to.

He also began a media tour claiming that he was a victim of religious persecution. He gave newspaper and television interviews. He appeared on “Good Morning America” and Fox News. After he began his public relations campaign, spectators at one game swarmed the field to join his prayer, knocking some students down. In the days that followed, school officials started receiving hate mail and were confronted by belligerent spectators at games.

The district then suspended Kennedy with pay. He sued, claiming his rights of free speech and religion had been violated. Normally, schools need not tolerate this level of disruption, but the court has been making religious people a kind of aristocracy, free to disregard all manner of rules everyone else must follow.

Kennedy claims that his speech was purely personal, and that the students’ participation in his prayers was voluntary. There is much evidence to the contrary. As Dahlia Lithwick and Mark Joseph Stern have shown, his claims depend on distorting the case’s facts. One parent complained to the school that his son “felt compelled to participate,” even though he was an atheist, because “he felt he wouldn’t get to play as much if he didn’t participate.” Others said their children “participated in the team prayers only because they did not wish to separate themselves from the team.”

After Kennedy was told to stop the prayers, several students and parents, who previously had kept silent, thanked the district for correcting the “awkward situations where they did not feel comfortable declining to join with the other players in Mr. Kennedy’s prayers.” Revealingly, the students stopped praying once Kennedy was no longer initiating and leading the prayers.

The Supreme Court argument focused on the vulnerability of students to pressure, which is clearly an issue. But the original meaning of the establishment clause is not only concerned with coercion of religious dissenters. It would be unconstitutional for schools to give minor prizes to students for professing the right religion.

Many people (including some judges) mistakenly think that disestablishment is somehow hostile to religion. The framers, however, wanted separation of church and state because they thought religion was uniquely sacred. They were particularly worried about pressure to outwardly conform to official religion — not because of discrimination, but because it produced a corrupted religion.

John Locke, the philosopher who most influenced the founding generation, argued that officially induced worship was “Hypocrisy, and Contempt of his Divine Majesty.”  Thomas Jefferson wrote that all attempts to influence religion “by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness.” James Madison despised the notion that religion should be promoted because it conduces to good citizenship. Any attempt to “employ Religion as an engine of Civil policy” was “an unhallowed perversion of the means of salvation.” 

Moreover, he wrote, “experience witnesseth that ecclesiastical establishments [produce] pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.” 

The Supreme Court’s first avowed originalist, Hugo Black (the architect of the Establishment Clause doctrine that today’s justices are likely to trash), thought that the First Amendment barred favoritism for “persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept.” (I’ve written a long article detailing the history of the corruption argument.)

Serious originalists would read the establishment clause in light of its purpose. But Kennedy will probably win his case, because the court is in the grip of a phony originalism that has nothing to do with actual original meaning.

If you asked a thoughtful Bremerton football player what he learned from his football coach, he might, if he were honest, tell you this:

“My public school taught me that religion is a sham. We go through the motions to keep the coach happy. But everyone knows that it is an empty ritual, and everyone knows that everyone else knows. The coach’s notion that this charade makes us ‘better people’ just shows that religious people like him are amazingly gullible. The whole business is a lie that maintains itself by students’ fear of losing playing time.”

One might say to this student: “That’s an exaggeration, isn’t it? Surely some of the students in the prayer circle are sincere. And the coach says he won’t retaliate against anyone who doesn’t join.” 

But he could reasonably reply: “Maybe, but how can anyone tell? In this situation, neither coach nor players can even be sure about their own motives. There is only one way to know religious people really mean what they say: take away all secular inducements. If the coach wins, those inducements will be a permanent part of ‘voluntary’ prayers, here and at lots of other schools. There are thousands of football scholarships, plenty of coaches who want to do what Kennedy did and plenty of students who will fear offending those coaches. Tawdry, bogus religion will henceforth be a permanent part of the landscape of American public education.”

This is exactly what the framers were afraid of. Do the court’s originalists notice?

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.

Tags First amendment Originalism US Supreme Court

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