July 21, 2022
A recent editorial by Nat Malkus, a senior fellow at the American Enterprise Institute, makes some interesting observations about the reasoning and possible implications of the Supreme Court’s decision in Kennedy v. Bremerton, the case involving the football coach who was asked by his school not to pray on the field after football games. This article highlights aspects of the case that illustrate how the Supreme Court does its work, why it is important, and what this decision might mean for future cases.
In the article, Malkus describes the decision as “confusing.” That characterization is prompted by the significant discrepancies between the ways the majority and dissenting opinions describe the facts of the case.
The majority opinion focuses on the private nature of the coach’s prayer. Although in the past the coach had shared religious thoughts with players, he had stopped doing that at the request of the school, so the majority of the court did not address that practice, only the post-game private prayers. For the majority, the coach’s private prayers were like other private activities school employees might participate in after a game (texting, social media, etc.). Singling out this one was a form of religious discrimination that violated the free exercise clause of the First Amendment.
The dissent, by contrast, speculated about two concerns that weren’t directly raised by the facts that led to the lawsuit: First, that students might feel coerced to participate in the prayers. Second, that the prayers would be disruptive. The majority did not engage these concerns since it determined the facts established in the lower court did not raise them.
So, reading these two very different accounts of what had happened in the case could be confusing. That confusion, though, can be dispelled to a great degree by understanding the different approaches to the judicial task that each account evidences.
The majority focuses on the very specific facts of the case. Since student involvement or public disruption were not at issue, these concerns did not influence the decision. This is consistent with a view of the role of judges as applying existing legal rules to specific disputes. In fact, the constitutional provision defining the role of the federal courts uses the terms “cases” and “controversies,” indicating that the court’s role is largely retrospective – meaning that the court should not be involved unless there is a specific disagreement, involving real facts, that can be resolved.
The dissent’s concerns, though raised by some aspects of the coach’s situation, were more prospective. In other words, it was concerned with issues that could occur if the coach was allowed to pray (disruption, coercion) but that arguably had not taken place. (The dissent suggests these concerns might have been present, but the lower courts ruled more broadly that there was no circumstance under which the coach could be allowed to pray on the field after the game because allowing that would establish religion. So the dispute over the specific facts could be limited, which is the approach the majority took.)
The dissent’s approach is more similar to what we think of as the task of the representative branches – making policy for scenarios that might arise in the future.
Given the difference of approach between the two opinions, it is not surprising that they seem to be so different and that their respective descriptions of the case would be at odds.
Since the majority carefully limited its decision to the precise issue presented to it, this means, as Malkus notes, that the court has not foreclosed ruling against a religious practice where there is evidence of actual coercion.
Since the majority’s decision is focused on resolving only the dispute before it, does that mean it won’t have an impact in future cases?
No. In fact, it is likely to have an important impact on a specific set of cases: those involving religious practices by government employees. Malkus points to religious dress as an example. Some countries prohibit these displays for fear of endorsing a specific religion. By clearly establishing that this concern should not be used to limit private devotion, the court has given invaluable guidance in resolving these types of conflicts. While the range of cases might be limited, the precision of the court’s decision will make its effect decisive on any case that raises the same issue.
Malkus is right to say that the court’s decision protects pluralism – the principle that the Constitution does not create a zero-sum game between citizens with different beliefs and convictions. That makes the Supreme Court’s decision valuable for everyone.
Curtis’ remarks highlight a crucial insight for finding workable policy solutions in a time of significant partisan division: build discussions on a foundation of what you can agree on.
At a Sutherland Institute Congressional Series event this week, Rep. Chris Stewart said that if people lose confidence in elections, “you have lost the foundation … for a government and society to survive.” Fortunately, Utahns trust in elections is high.
Speaking at a Sutherland Institute Congressional Series event this week, Rep. Chris Stewart said he believes that federalism is the only way for America to overcome its divisions.