June 2022 Church & State Magazine

Playing Offense: AU Delivers Powerful Arguments To Supreme Court In Public School Prayer Case

  Liz Hayes

In a recent message to AU members, Americans United President and CEO Rachel Laser expanded on the saying that it takes a village to raise a child: “It will take a village to protect our children from religious coercion in public schools.”

Representatives of that village turned out in force on April 25, as Americans United Vice President and Legal Director Richard B. Katskee argued on behalf of Bremerton School District before the U.S. Supreme Court. Katskee defended the Washington State public school district in Kennedy v. Bremerton, a case involving a public high school football coach who violated the religious freedom of students by pressuring them to join his public prayers at the 50-yard line after their football games.

Katskee urged the justices to affirm that the district did the right thing – no student should feel pressured to pray to play.

“No one doubts that public school employees can have quiet prayers by themselves at work even if students can see. If that were the issue, there wouldn’t be a case here because the district allowed that,” Katskee said in his opening statement to the justices. “But that wasn’t good enough for Mr. Kennedy. He insisted on audible prayers at the 50-yard line with students. He announced in the press that those prayers are how he helps these kids be better people. And after the District closed the field to the public, he expressly permitted legislators and others to join him.

“Kennedy’s rights … have to be balanced against the district’s interest in controlling its events and messages, protecting the religious freedom rights of the students and their parents, and managing the workplace,” Katskee continued. “Mr. Kennedy’s actions pressured [students, some as young as 14,] to pray and also divided the coaching staff, sparked vitriol against school officials, and led to the field being stormed and students getting knocked down. When Mr. Kennedy repeatedly ignored sincere efforts to accommodate personal prayers, what was the district to do?”

Katskee pushed back against the deceitful narrative presented by Ken­nedy’s attorneys that the coach wanted to pray quietly by himself and urged the justices to uphold decades of established law that prevents government employees from pressuring students to pray in public schools.

Meanwhile, outside the court that morning, Laser rallied faith leaders, religious freedom advocates and other allies in support of students’ religious freedom and church-state separation.

“We’re here today as Americans United, defending the separation of religion and government, fighting the shadowy network aiming to tear down a core pillar of our democracy,” said Laser at the start of a press conference that was also livestreamed on AU’s social media platforms. “We’re here today as Americans United, because if agents of the state are allowed to impose their religious beliefs on students, we could witness the greatest loss of religious freedom in generations.”

Taking the podium next was U.S. Rep. Jamie Raskin (D-Md.), who led a friend-of-the-court brief joined by members of Congress in support of the school district. Raskin, a constitutional law professor before he was elected to Congress, noted that contrary to the false narrative presented by opponents of church-state separation, voluntary student prayer remains constitutional in public schools.

“The Supreme Court never banned prayer in the public schools,” Raskin said. “As I like to say, as long as there are pop math quizzes, there will be prayer in the public schools.

“The point is: employees of the school and officials of the school cannot engage in prayers and then try to get other people to participate with them because that clearly violates the separation of church and state,” Raskin said.

Following Raskin, Ouida Brown, general counsel for the Christian Methodist Episcopal Church and a member of AU’s Board of Trustees, spoke: “I’m from Alabama, and you have to admit, we know a little bit about football. So, I know how much it means for a football player who plays the game. If their coach prays, so will they – even if they don’t want to. They will do whatever it takes to make sure they get playing time. … But it is not OK, and it is unconstitutional for public school coaches to pressure students to pray with them. When Coach Kennedy did that, he violated his players’ religious freedom.”

Brown’s denomination joined another friend-of-the-court brief in support of the school district. That brief was signed by more than two dozen religious and denominational organizations, as well as eight Bremerton-area faith leaders – five of whom traveled across the country to join AU in front of the Supreme Court.

“As a person of faith and as a local pastor, I believe that prayer is a sacred act,” said the Rev. Meghan Dowling of Bremerton United Meth­odist Church. “Prayer should never be used to pressure, coerce, manipulate or otherwise harm any of its participants. But unfortunately, this is exactly the result of Coach Kennedy’s public prayers. When he intertwined his prayer with his post-game pep talks, he made it impossible for vulnerable students to opt out without risking their place on the team.”

The Rev. Gregory Reffner of Browns­­ville United Methodist Church in Bremerton said it was important for fellow Christians to recognize the privilege they’ve historically had as the religious majority in America and to be mindful not to wield that privilege in ways that harm others’ religious freedom.

“As a Christian leader and pastor, one thing I regularly teach and preach in my congregation is that Christians ought to follow the example of our God and continually examine the power and privilege that we hold and consider what it looks like to let go of that power and privilege so that our local neighborhoods might reflect the communities of love that Jesus came to establish,” Reffner said. “And while it saddens me to say this, Christians throughout our history have enjoyed authority and power in the public sphere that religious minorities and folks who do not adhere to a faith can only dream of.”

Student Rabbi Emily Katcher from Beth Hatikvah, Bremerton’s only synagogue, also centered the experience of religious minorities and the nonreligious in her remarks.

“In any country where Jewish people have lived, we have a history of being the other, of being oppressed, of being told we are less than,” she said. “When we come to America, as we have lived so happily and so freely for so long, we feel deep gratitude in our everyday lives for the separation of church and state. That we are free to be Jews, to pray as Jews and live as Jews, as full citizens of this country. That our children go to public schools, for which we pay taxes, and are taught by teachers who will not treat them as less than.

“We want to maintain those freedoms not just for Jews but members of any minority religion – our Muslim children, our Hindu children, our Sikh children, all of our children, our children who are Unitarians, our children who are atheists,” Katcher added.

The Rev. Douglas Avilesbernal, executive minister of the Evergreen Association of American Baptist Churches, reminded listeners of Jesus’ words in the book of Matthew: “‘Be careful not to practice your righteousness in front of others in order to be seen,’” Avilesbernal said. “And then, on the sixth verse of Matthew, Jesus says, ‘And whenever you do pray, do not be like the hypocrites for they love to stand and pray in the synagogues and on the street corners.’

“For a football coach, is there anything more of a street corner than the 50-yard line after a football game?” Avilesbernal asked. “So, my beloved fellow Christians, let us remember that Jesus was always harshest with the leaders, especially when they were exercising their leadership, because Jesus knew that people followed leaders in what they do and what they see them do. Especially those who are under their guidance, like football players under the coach’s guidance.”

The Rev. Kathleen Kingslight of St. Paul’s Episcopal Church in Bremerton closed out the press conference by speaking emphatically in support of church-state separation. “Using one’s power to override the religious freedom of others is wrong. It’s against the boundaries set up by the school district in Bremerton, it rips away the boundaries of the Constitution and amendments meant to protect our religious freedom,” she said. “Let’s keep faith and government in their own lanes so that our kids can live the freedoms we all so value.”

In her message to AU members later that week, Laser noted the significance of the faith leaders’ presence at the court: “They spoke with passion and conviction and their words were all the more poignant because of the silence from the other side. There was no rally for the coach, no clergy or supporters willing to travel across the country to stand at his side. It was just the coach and his lawyers.”

The Supreme Court is expected to issue a decision in Kennedy v. Bremerton by the end of this month.

 

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