A few months ago, professor Katherine Franke suggested, in a conversation on my podcast Amicus, that the current Supreme Court seems to be working its way toward what she called a “tiered” system of constitutional rights, one that would, in any conflict arising between the two, almost unerringly privilege religious liberty over every other right or interest, whether it was public health, or LGBTQ dignitary interests, or reproductive freedom. She suggested that because religion is explicitly named in the Constitution and those other freedoms or values are not, religion will win every time. More striking still was Franke’s claim that as a result of decadeslong efforts to privatize social welfare, justice, and health care, and with religious entities rushing in to fill those spaces, even the remaining structures of the public sector will always appear to be anemic, anonymized, and collective.
As she put it, in a conversation about abortion rights, “we have delegated to the private sector—largely religious or faith-based organizations—the job of thinking morally, and now all government is there for, all the public sector is there for, is a coordination function.” She added that “when you have the thick morality of religion up against a thin administrative state that doesn’t have any commitment to a good society, the public sector will always lose.”
That “thin” public morality is now responsible for the daily business of keeping us healthy, educating our children, and keeping the public safe. But when it clashes with a good story about a lone actor attempting to live their moral and spiritual life, it is persistently set aside as unimportant—a faceless, pointless bureaucracy. Consider that the entire CDC was flipped off last week by a Florida district court judge fighting for the “liberty” interests of unmasked travelers; consider that the Supreme Court did something similar this winter over the Biden administration’s test-or-mask mandate; or that the court did much the same thing on the shadow docket when it allowed religious adherents to challenge early COVID lockdown orders.
So long as the public morality around democratic institutions is cast in terms of pencil pushers and rules, there will never again be a public health, education, child welfare, or other mandate that cannot be brushed aside with the argument that a lone person of faith is suffering under its heartless, bureaucratic strictures.
One of the points Franke was making at the time was that individual moral actors, particularly religious adherents, will always prove to be a better vehicle for the kind of moral storytelling required to prevail in a court, and that the interests of an impersonal civil rights infrastructure, or a public health regime, will always feel less ethically urgent. As she put it, “that’s why we lost the COVID court cases: Religion is so much more important than whatever kind of collective morality we might be able to muster around protecting public health. Religion has captured so much of what we even might think of as secular public health values.”
This is hardly new. The quest for sympathetic plaintiffs is a storied part of what Supreme Court litigators do. What feels new is that—as is the case with the conservative legal movement and its larger war on the administrative state and regulatory agencies—all of those anonymous, faceless bureaucrats are actually working toward something that is bigger than amoral, faceless bureaucracy. Those “thin” systems are tasked with keeping us healthy, protecting the environment, or licensing gun ownership. Yet all are easily lampooned at an oral argument. It’s always easier to empathize with someone who wishes to pray.
There can be no better representation of the thin nature of public morality than oral arguments this week in Kennedy v. Bremerton School District, a case about the right of a football coach to pray on the field during public school football games. As Mark Joseph Stern noted when the case was argued on Monday, confusion, elision, and distortion of the facts in the record became a feature and not a bug in a lawsuit that takes aim at decades of establishment clause jurisprudence. But regardless of what truly happened in the underlying record, what’s abundantly clear from the oral argument is that the school district—which was attempting to accommodate a desire on the part of a coach to pray in public on school grounds—is reduced to a punchline.
Even justices sympathetic with the school district made it sound as though a bunch of hapless public officials were struggling pointlessly to workshop an impossible establishment clause problem by way of groupthink and middle managers. Here’s Justice Stephen Breyer, for instance, describing the school district’s efforts to accommodate coach Joe Kennedy after multiple public displays of sectarian worship with players:
Well, you cannot engage in demonstrative religious conduct while you are on duty for the district. OK? But, if it’s not going to be perceived as district endorsement—we’ll accommodate it. For example, pray privately or inside the school building or on the athletic facility somewhere or in the press box, and you can do that before or after games. And the development of accommodation is an ongoing process, and we will discuss further accommodations.
Even to my ears that all sounds like some set of practices and alternatives they cooked up somewhere between HR and Dilbert and The Office.
Compare the hapless school district to the conduct of Kennedy, who, even in the least generous version of the facts as characterized by Justice Sonia Sotomayor, sounds consistent and principled and genuine: The district, she noted, let him pray. It was “willing to let him speak—pray anywhere he wanted in the school. After the game, come back. He’s the one who chose to publicize his prayer by doing it on the 50-yard line. He didn’t do it on the side. He didn’t just bow his head. He got on a knee at the very center of the field. I don’t know of any other religion that requires you to get at the 50-yard line, the place where postgame victory speeches are given. What religion requires you to do it at that spot?”
The coach genuinely felt that his need to pray publicly on school time and school property was more urgently important than the interests of students and their parents who seek to be free from religious coercion by the government. Suddenly those students, as Stern noticed, are invisible. The other teachers and coaches are also invisible. So are the parents. And that is why Chief Justice John Roberts’ questions—about the press conferences, the state legislators, and the stampede of supporters who joined in on the 50-yard line—matter so much. As Roberts asked Richard Katskee, of the school district, “If those facts were not the case, if nobody had complained, if there was no press conferences, there was no dispute, would your position be the same?”
Of course this was a media spectacle, because it had to be. This, too, was part of Kennedy’s sincerely held religious beliefs. And the reason Katskee’s responses to the myriad questions about school district policy sound legalistic and cautious and caveat-ed is that in the face of one man’s sincerely held religious beliefs, doctrinal demands for things like “flexibility” and “line drawing” and “fact-specific” analysis sound like legal gobbledygook that can be lampooned as trivial or even recast as anti-religious animus.
There is no reason to doubt that Kennedy will prevail in his challenge to a school policy that is rooted in many decades of solicitude for children who may feel coerced by sectarian worship in school or parents who don’t send their kids to schools that may do so. The challenge played out precisely as it was engineered to do, as an appeal to a thick and robust religious morality that makes the work of running a school district seem silly. Justices who have copious empathy for religious adherents need not concern themselves about student athletes who feel compelled to take a knee to get more playing time because their interests have been dulled and blunted by another account of the beige-suited beige lawyers who run school districts.
We have made it far too easy to forget that school officials, public health officials, educators, and election officials aren’t just soulless bureaucrats. They’re also the foot soldiers of democracy. That work is messy and collaborative and full of guesswork and nuance and it’s never going to pray for anything beyond the ability to survive another day. Unless we can figure out how to tell a more sympathetic story of the work they do and the faceless real people they represent, they are going to continue to lose in the courts, elegantly and dramatically, every single time.
For more legal analysis and commentary from Dahlia Lithwick, listen to the latest episode of the Amicus podcast.