The Supreme Court took another step toward returning prayer to public school during Monday’s oral arguments in Kennedy v. Bremerton School District. That case is built on a series of brazen lies designed to depict the plaintiff, Coach Joe Kennedy, as a victim of anti-Christian discrimination—and to erase the students whom he coerced into prayer. A majority of the court will likely buy into this fiction and elevate school officials’ ability to proselytize over students’ right against state-sponsored indoctrination. But one surprisingly piercing series of questions from Justice Brett Kavanaugh cut through many layers of deception to reach the heart of the case: the profound yet often subtle pressure on students to participate in school prayer, even when doing so violates their own faith.
Kavanaugh frequently asks questions that suggest a genuine, open-minded interest in the other side’s arguments, only to revert back to hard-line conservatism when the decision comes down. So his performance on Monday may just be part of his broader public relations campaign to craft the image of a reasonable moderate. But it is still worth thinking seriously about his stated disquietude, because no justice expressed the actual stakes of the case more bluntly.
To understand Kavanaugh’s question, you have to know the facts of Kennedy; to understand the facts, you have to dive into an eddy of disinformation and deceit. The plaintiff’s lawyers insist that he was fired from his job as a football coach for engaging in “quiet, private prayer” at the 50-yard line after games. The extensive record developed in the district court tells a different story. It demonstrates that Kennedy formed prayer circles with team members after each game, leading the students in audible Christian prayer while in the midst of his formal duties. When the school district asked him to pray privately instead, he claimed he had been persecuted for his religious exercise.
Kennedy hired far-right lawyers who threatened legal action against the school district, transforming the postgame ritual into a media spectacle. Eventually, students began racing onto the field to join the prayer circle, creating a 500-person stampede that injured multiple people. Put simply, there was nothing “quiet” or “private” about Kennedy’s proselytization. (Also, he wasn’t fired; he was placed on paid leave.)
Not every member of the football team shared their coach’s Christian faith. But virtually all of them felt compelled to participate. Team members later explained that praying with Kennedy was “expected.” The coach even encouraged his own players to recruit their opponents and their coaches into the prayer circle. Some students joined in only because they feared they “wouldn’t get to play as much” if they declined, or because “they did not wish to separate themselves from the team.”
One member of the football team during Kennedy’s tenure, who came forward under a pseudonym for fear of retaliation, attested that he refused to bow his head because Kennedy’s prayers did not align with his own beliefs. He was then “persecuted” for failing to conform, treated poorly by the coaches and permitted to play only because of his talent on the field. The experience still haunts him, as well as others who felt queasy about the indoctrination they faced at school. These players, the student said, “would rather forget about that time of their life.”
Most of the conservative justices ignored this aspect of the case. Kavanaugh, who moonlights as a coach himself, did not. Midway through arguments, he forced Kennedy’s lawyer, Paul Clement, to address it directly, asking: “What about the player who thinks, if I don’t participate in this, I won’t start next week? Or the player who thinks, if I do participate in this, I will start next week?”
Clement responded that the school could issue “a clear message that that’s inappropriate,” but Kavanaugh pushed back. “How will you ferret that out?” the justice asked. “Because every player’s trying to get on the good side of the coach. And every parent is worried about the coach exercising favoritism in terms of the starting lineup, playing time, recommendations for colleges, etc.”
The best Clement could offer was a bromide: “If any coach or teacher does it, shame on them and they should be punished.” This answer, it seems, did not satisfy Kavanaugh, who launched into a monologue about his still-unaddressed concerns:
I guess the problem at the heart of it is you’re not going to know. The coach is probably not going to say anything like “The reason I’m starting you is that you knelt at the 50-yard line.” You’re never going to know. And that leads to the suspicions by parents—I think, I’m just playing out what the other side is saying here—the suspicion by parents that the reason Johnny’s starting and you’re not is [because] he was part of the prayer circle. I don’t think you can get around that. That’s a real thing out there. That’s going to be a real thing in situations like this. I don’t know how to deal with that, frankly.
Luckily, the Constitution already provides a way to deal with that. It’s called the establishment clause of the First Amendment. And in case after case, the Supreme Court has held that public schools violate the establishment clause when they coerce students into prayer. Even when that coercion is “subtle and indirect,” it “can be as real as any overt compulsion,” especially for students. Teenagers are uniquely “susceptible to pressure from their peers towards conformity,” and state officials “may no more use social pressure to enforce orthodoxy than it may use more direct means.” It would be absurd, the court has explained, to “assert that high school students do not feel immense social pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American high school football.” In this fraught environment, the First Amendment does not allow a school official “to exact religious conformity from a student as the price” of participation.
If Kavanaugh applies these bedrock principles, Kennedy is an easy call. But he has previously signaled his support for the coach, and his other comments on Monday reflected an ingenuous acceptance of Clement’s fraudulent narrative. (Of the conservatives, only Chief Justice John Roberts punctured the shameless falsehood that the coach prayed quietly.) So there are strong odds that Kavanaugh’s probing questions were a red herring, and he will revert to form by the time a ruling comes down. If so, at least the justice gave us one moment of clarity—proof, however fleeting, that he recognizes the real victims in this case.
