On Monday, the Supreme Court will hear argument in a matter that gives it the opportunity to correct a longstanding doctrinal error regarding the conflict between the Free Exercise and Establishment Clauses.1 It won't; given the errors in its past and its current composition, it is far more likely to make things worse, both "more confused" and "more oppressive."
The inevitability is immediately apparent in what is missing in the conversation: Not once is there any attempt to place Mr Kennedy's actions2 in context. For example, not once is the name of his congregation mentioned, or other source of the personal beliefs that he claims require him to transfer his apparent secular authority as a coach and public employee to visible and clear religious exercise. This matters, especially to anyone who actually knows anything at all about the Bremerton, Washington area.3 There is a relevant history of suppression of minority views and opinions, and of enthusiastic McCarthyism, and of the US Navy.4 The only hint regarding the latter is that there's a throwaway acknowledgement in a Ninth Circuit opinion that Mr Kennedy's "day job" (he was only a part-time assistant coach!) was at the Pacific Naval Shipyard (ponder note 3 again). The source of doctrine (or personal faith) does not determine the validity or acceptability of that doctrine (or personal faith)… but neither is it irrelevant.5
It's worth considering a few variants on the context of Mr Kennedy's conduct to see what's really going on here. Consider:
- If Mr Kennedy had placed his prayer rug at the 50 yard line, oriented it toward Mecca, and prayed… especially relevant because this case is being heard during Ramadan, concerning games ordinarily scheduled on Fridays.
- If Mr Kennedy had cited his pastor and congregation on the record, or the record contained any "invitation to join me Sunday at X" sorts of things.
- If Mr Kennedy had called upon the Great Spirit to bless the bounty of the post-game pizza party.
- If Mr Kennedy had sat down at midfield, pulled out a book, and begun reading… and discussing the content of that book with interested players and community members who joined him.
- If Mr Kennedy had done all this at a school board meeting instead of a football game.
Bluntly, the Supreme Court's decision in Santa Fe rests on two insupportable premises, even if the result came out sort of ok. The first bad assumption is that in matters of religion children can and do make decisions, and espouse messages, as other than sock-puppets for adults (usually parents, sometimes other "community leaders"). There are some extraordinarily rare exceptions, but they are also so rare that it's difficult to imagine any popularly-elected school board accommodating them (let alone, umm, evangelizing them). The second bad assumption is that peer pressure to conform to a leader's6 overt, purportedly personal "free exercise" does not, and never can, constitute either an "establishment" by effect… or denegration of dissent and dissenters.
I expect that the final decision in Kennedy will be mostly in his favor. Whether he will get his job back directly or the matter is merely sent back "for further proceedings consistent with this opinion" is really the only question. This Court in particular — with its nondiverse religious background — has demonstrated little or no ability to contemplate the problems of nonconformists,7 and a majority of its members (in other contexts, both prior opinions and otherwise) has expressed overt disinterest in doing so.
- U.S. Const. Amd. I (1791); cf. Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290 (2000).
- Remember, this case is not about Kennedy's personal exercise in the privacy of his own home. It is about Kennedy, as an assistant football coach at a public high school in a school district in which most of the "new people" are military families and/or in private industry that serves a major naval base, leading prayers on the publicly-owned field and influencing his minor students to join him in those prayers.
- I grew up across the Sound, so I wasn't actually in that community. That said, I had constant contact with it, and I am all too familiar with the "outsider problems" in Kitsap County — then and now. In particular, I was then (and remain) familiar with some of the community-institution bad actors — institutions, including three evangelical organizations, that in the 1960s and 1970s opposed civil rights for Others under cover of religious dominionism. The silence in the record on this point is rather disquieting… and consistent with the historical coopting of media on the western shore of Puget Sound, but that's a long (and unintentionally revealing) story indeed. Cf. Capitol Square Rvw. & Advisory Bd. v. Pinette 515 U.S. 753, 780 (1995) (O'Connor, J., concurring) (remarking that "the reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious display appears" while simultaneously, on the facts presented but without so stating, ignoring the relevant such awareness of nonmajority persons).
- Two hundred years of tradition unsullied by any hint of progress (a statement that itself fails to note the passage of another half-century). Worse yet, it's a ballistic-missile-submarine base, with all of the extra joy of indoctrination for the vastly-higher-than-normal proportion of personnel on the PRP.
n.b. The USAF — and certainly the Air Force Academy — arguably does things even worse… just not for as long. Yet. And I knew (personally, we had been commissioned together) one of the outsider-officers involved.
- Failure to engage with this issue is a potentially fatal flaw in this record, reminiscent of (yet worse than) Trump v. Hawaii's mention but nonengagement with the bigotry that animated the challenged policy.
Irrelevant aside: It rather pisses me off that four years after this decision was issued, it still has not been issued in its final, official form by the Court. I will not use the unofficial versions. Ever. (And neither should anyone else.) The Court needs to reprioritize actually making authoritative statements of What the Law Is available to the public, and not rely on either the Bar or the too-often-incompetent "editors" at private vendors to do so. It's hard to say whether "natural language searching" or "reliance on headnotes" is a worse way to understand the law — but they're both unacceptable, and both lead to frequent errors.
- It's bad enough when it's "student leaders," whether one means "football team captain," "president of the Student Body Association," one of the "popular kids" (these days, an "influencer"), or "selected mouthpiece of the principal." I've… experienced… all of them, and so did my children. It's much, much worse when it's an adult authority figure, like a higher-in-the-chain commander, a member of the school board, a "public figure" in the civil rights movement always referred to as "Rev." Mr Kennedy managed to combine the two… precisely how "evangelical Christianity" is structured to work, even if it uses different language to describe its mechanisms.
- Like, say, Puritans in seventeenth- and eighteenth-century England. Or Jehovah's Witnesses in 1940s Appalachia. Or a woman at Harvard Law School in 1957. The irony that the all-white-male Courts of the 1940s and 1950s were better at this than the ones we have now says much more about the selection process to the Court than it should, and in particular whether "originalism" is the new shibboleth… or whether actual experiences are distinct from surface tribal characteristics. That this is the actual justification — ex ante and ex post — for having both free exercise and establishment clauses seems to have largely escaped notice. (And that my native language is not law, but literature and/or the scientific method, just makes it harder for me to conform… and I use that word with pretty extensive knowledge of what it meant at the time of the Founding. I just reject it.)
The fundamental problem is that members of the judiciary (federal or otherwise) seldom had visceral and personal interactions with the bad actors (as distinct from the bad policies), and so all too easily fall back on the "persons of good faith" presumption. In my first profession, my experience was… otherwise (both domestically and otherwise, both as to Americans and otherwise, just generally otherwise).