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Opinion >  Syndicated columns

Noah Feldman: The tangled case of the high school coach who prayed

By Noah Feldman Bloomberg Opinion

I feel bad for anyone not steeped in establishment clause jurisprudence who happened to listen to the Supreme Court’s oral arguments in the football coach prayer case, Kennedy v. Bremerton School District.

On the surface, the question is simple: Can the public high school coach kneel and pray silently on the 50-yard line after games? But the doctrine the court has created over the years is so complicated and confused that you would be hard-pressed to make any sense of the debates without a law school course on the First Amendment under your belt.

When constitutional precedent is a mess, it’s always useful to start with what the framers would have thought about an issue. In the case of the establishment clause, the answer is fairly clear. They believed the government couldn’t coerce you to perform a religious act against your will, and they believed the government couldn’t fund religious teaching. Many years ago, when I was a baby professor researching the history of these issues, I summed this up as: “No coercion, no money.”

The framers would therefore have looked at coach Joseph Kennedy’s 50-yard-line prayer and (once they figured out what football was) asked: Is any government money being spent? And is anyone being coerced?

Kennedy was being paid by the school district to be a coach, but not to be a prayer leader, so the framers would likely have concluded that the no-money condition was not violated. As for the second rule, they likely would have thought that since no player was formally required to participate in the prayer, the no-coercion principle was not violated and the prayer was constitutional.

But Supreme Court justices aren’t only answerable to original meaning, even if they claim to be originalists. They also have to answer to precedent. In an opinion by Justice Anthony Kennedy in the 1992 case of Lee v. Weisman, the court held that a prayer offered by a rabbi at a public middle school graduation violated the establishment clause because, although the students were not obligated to attend or stand for the prayer, they might still feel coerced to participate because, well, middle school.

Applying the social coercion test makes the coach’s prayer case a lot harder. As any former high school athlete can tell you, the coach is often a god, or the next thing closest to one. The coach holds total power over who plays and for how long; and, ideally, that person is someone worthy of admiration and emulation.

If the coach prays and some players demonstratively join him, it becomes hard to imagine that other team members would not feel coerced. The framers hadn’t expanded the notion of coercion to include social pressure. But the Supreme Court does, and that pressure should matter.

Unfortunately, even this more nuanced analysis doesn’t resolve the case. That’s because, already in the 1960s, the court held that coercion (even social coercion) isn’t necessary for a violation of the establishment clause.

In 1971, in a famous case called Lemon v. Kurtzman, the justices said the clause was violated unless the government action had a secular purpose and a primarily secular effect. That rule was and remains hard to apply. So, in 1984, Justice Sandra Day O’Connor tweaked it, redescribing the Lemon test as in fact a test of whether the government was endorsing religion, sending a message that religion is relevant to one’s standing within the political community.

Applying the endorsement test requires the court to ask whether the government is doing the talking when a government employee like the coach prays. If the coach was the government, then the prayer is clearly unconstitutional, since it endorses religion. If, however, the coach was a private individual not acting on behalf of the government, then he was exercising his right to speak freely and exercise his own religion. In that case, the prayer was not only permissible but constitutionally protected.

As you can imagine, the question of who the coach was when he was praying is not one that can be answered with any real precision. On the one hand, the coach is the coach is the coach. He isn’t only paid for coaching during the game but for what he does with his players before and afterward.

That’s why the school district had reason to fire him when he refused to stop praying: They reasoned, logically enough, that his prayer was a state action in violation of the establishment clause. If I were a justice, I am pretty sure I would see the case that way.

On the other hand, no government employee, not even a coach, is on duty 100% of the time. We want teachers and coaches to be able to exercise their free-speech and free-exercise rights where compatible with fulfilling their professional responsibilities.

Consequently, the justices spent a good deal of the oral argument asking whether the coach was fulfilling his coaching duties while praying. That’s the question the court usually asks in cases about public employees’ free-speech rights.

Their questions hinted that at least five justices think the coach was exercising his right to speak or pray on his own time. In that case, the court will hold in his favor, or maybe send the case back to the lower courts to determine whether he was on the job as a factual matter.

But the upshot is that the justices never really had to address the deepest underlying question here, which is whether the Constitution should be interpreted to permit public displays of religion by government employees in contexts like a high school football game. On that question, our nation is divided. So, it would seem, are the justices.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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