Opinion: Tories aim to rewrite the Religion and Schools Act

This possibility was exposed in Monday’s argument in Kennedy v. Bremerton. In this case, a Washington State public high school football coach lost his job after leading public prayers on the 50-yard line after games.
At issue in the case is whether the coach’s prayers amounted to an authorized exercise of the coach’s rights to free speech and free exercise of religion, or whether the prayers were an impermissible establishment of religion by the government. The district court and the 9th U.S. Circuit Court of Appeals ruled for the school district, but the six-member conservative majority on the Supreme Court appeared to be looking for ways to overturn those findings and justify the coach’s actions.
The judges had many questions about the facts of the case, which remain somewhat disputed. The coach’s lawyer argued that his prayers were private actions, which his players and others were free to join in or ignore. The school board lawyer focused on what happened after the controversy became public – wild and dangerous scenes on the grounds, where strangers demanded to be part of prayers, and other cults nuns (and non-believers) sought opportunities to conduct competing observances after games.
Judge Brett Kavanaugh, who is a basketball coach, was mainly interested in the various possibilities raised by the case. He asked if the prayer was in the locker room, or in a huddle on the pitch, or as the players walked away after the game.
Still, the heart of the controversy seemed simple — and an echo of issues the Supreme Court has been dealing with for decades, starting in 1962 when justices banned mandatory school prayers. The question was which perspective mattered more – the teacher who wants to pray and the students who want to join him, or the students and others who don’t want to be exposed to forms of religious worship they don’t share. nor do they approve.

The issue, as Judge Elena Kagan said, was about “coercion.” As she pointed out, a football coach wields tremendous power in a high school setting. He can decide which student-athletes will start or play at all; it can recommend (or refuse to recommend) students for scholarships and jobs. If a coach with that kind of power holds “voluntary” prayer sessions after games, are the prayers really voluntary or a form of coercion?

The answer to this question once seemed clear. In 2000, judges banned a practice at a Texas high school where students led “voluntary” prayers before football games. A 6-3 majority in that case held that “the performance of a pre-game prayer has the improper effect of compelling those present to participate in an act of religious worship”.

During Monday’s closing argument, the school board’s attorney said a post-game prayer should meet the same fate. But Paul Clement, the coach’s attorney, said the prayer in the Texas case was done over a loudspeaker and was therefore more intrusive. More bluntly, Clement suggested that the Texas case was obsolete under current court precedents and should be overturned.

Clement was playing a strong hand. Transforming the law of religion under the Constitution is a key goal for the Conservatives. Part of the goal is to open up more places and public spaces for religious practice. The Ten Commandments displays on public property have been approved, and curators have even higher priorities. In the past, the Supreme Court has severely limited the amount of funding religious institutions can obtain from the government.
Increasingly, religious institutions have insisted on the right to public funds, and they have won in the Supreme Court. In 2017, the court decided that public funds for the construction of school playgrounds made available to public schools should also be made available to religious schools.
In 2020, the court ruled that state scholarship funds should be made available to parochial schools as well as public schools.

The end point of this Conservative offensive is now in sight. At one level, it would be a voucher system for all primary and secondary education – where public funds would go to schools chosen by parents and children, whether public, private or parochial. And for the public schools that remain, the obligatory prayers, banned for so long, would make a comeback.

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