Editor’s Note: Jeffrey Toobin is chief legal analyst for CNN and the author of “The Nine” and “The Oath.” The opinions expressed in this commentary are his own. View more opinion on CNN.
By now, it’s well known that the Supreme Court, in its new conservative orientation, is poised to rewrite our understanding of the Constitution when it comes to abortion (allowing states to ban it) and gun control (preventing states from imposing it). But there’s another area that may be due for upheaval – the establishment and free exercise religion clauses of the First Amendment.
That possibility was on display in Monday’s argument in Kennedy v. Bremerton. In this case, a football coach at a public high school in Washington state lost his job after he conducted public prayers on the 50-yard line after games.
The issue in the case is whether the coach’s prayers amounted to a permissible 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 9th US Circuit Court of Appeals ruled for the school district, but the Supreme Court’s six-member conservative majority appeared to be looking for ways to overturn those results and vindicate the coach’s actions.
The justices had a lot of 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 had the freedom to join or ignore. The school board’s lawyer focused on what happened after the controversy became public – wild, dangerous scenes on the field, where outsiders demanded to be part of the prayers, and other religious sects (and nonbelievers) sought opportunities to conduct competing observances after games.
Justice Brett Kavanaugh, who is a basketball coach, was especially interested in the different possibilities raised by the case. He asked what if the prayer was in the locker room, or in an on-field huddle, or as the players were walking away after the game.
Still, the heart of the controversy seemed straightforward – and an echo of issues that the Supreme Court has been addressing for decades, starting in 1962 when the justices banned mandatory school prayers. The issue was whose perspective matters more – the teacher who wishes 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 that they neither share nor endorse.
The question, as Justice Elena Kagan put it, was about “coercion.” As she pointed out, a football coach exerts enormous power in a high school setting. He can decide which student athletes start or play at all; he can recommend (or refuse to recommend) students for scholarships and jobs. If a coach with that kind of power conducts “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, the justices 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 delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship.”
In Monday’s argument, the school board’s lawyer said a postgame prayer should meet the same fate. But Paul Clement, the lawyer for the coach, said the prayer in the Texas case was made over a loudspeaker and thus was more intrusive. More candidly, Clement suggested that the Texas case was obsolete under the court’s current precedents and should be overruled.
Clement was playing a strong hand. Transforming the law of religion under the Constitution is a key objective for conservatives. In part, the goal is to open more public places and spaces to religious observance. Displays of the Ten Commandments on public property have been approved, and conservatives have even bigger priorities. In the past, the Supreme Court has sharply limited how much religious institutions could obtain funds from the government.
More and more, religious institutions have been insisting on the right to public funds, and they have been winning in the Supreme Court. In 2017, the court decided that state funds for constructing school playgrounds that were available to public schools had to be available to religious schools as well.
In 2020, the court held that state scholarship funds had to be available to parochial schools as well as public schools.
The end point of this offensive by conservatives is now within view. At one level, it would be a voucher system for all primary and secondary education – where government funds go to the schools that parents and children choose, whether they are public, private or parochial. And for the public schools that remain, mandatory prayers, which have been banned for so long, would make their return.