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The U.S. Supreme Court's conservative super majority waded into yet another hot-button cultural issue today, ruling that a high school football coach has the right to pray on the 50-yard line after the game. The vote was 6-3. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Coach Joseph Kennedy repeatedly defied orders from school authorities that he stop his post-game praying on the 50-yard line with students. He claimed those orders violated his right to the free exercise of religion and his free speech rights. School authorities in Bremerton, Wash., said his praying would be perceived as an unconstitutional endorsement of religion.
But today, the Supreme Court formally jettisoned the so-called endorsement test used in the past and asserted that there was no evidence students were coerced to pray with the coach. Writing for the court majority, Justice Neil Gorsuch said that respect for religious expression is indispensable to life in a free and diverse republic, whether those expressions take place in a sanctuary or on the field. Here, he said, school authorities sought to punish an individual for engaging in a brief, quiet, personal religious observance protected by both the free exercise of religion and the free speech clauses of the First Amendment.
University of Virginia law professor Douglas Laycock usually files briefs siding with religious advocates but not in this case. He calls today's ruling, quote, "fundamentally dishonest" and points to the third sentence of the Gorsuch opinion, which characterizes Coach Kennedy's conduct as quiet, isolated prayers.
DOUGLAS LAYCOCK: They weren't quiet, and they weren't isolated. They were leading the students in prayer. And to say that's OK, you know, undermines all the school prayer cases.
TOTENBERG: By that, he means Supreme Court decisions barring teacher and student-led prayers in public school classrooms and ceremonies like graduation.
The dissenters, led by Justice Sonia Sotomayor, accused the court majority of misrepresenting the facts. They noted that the majority opinion focused on just three games and ignored all the others, including the homecoming game, where Coach Kennedy, after a media blitz, prayed on the field accompanied by a state legislator and ending with a mainly pro-prayer crowd storming the field, knocking over band members and cheerleaders. Today's decision, wrote Sotomayor, elevates the rights of a school coach who voluntarily accepted public employment over the rights of students required to attend public schools who may feel obligated to join in prayer. In doing so, the court gives short shrift to the Constitution's ban on state entanglement with religion.
In his opinion for the court, Justice Gorsuch put the nail in the coffin of a prior 1971 decision and said the test now should be the history, text and traditions of the Constitution. But it is unclear how school boards are going to figure that out. The ACLU's David Cole points out that public schools didn't even exist at the time the First Amendment was adopted.
DAVID COLE: The notion that somehow the - you know, James Madison and Thomas Jefferson would have thought it's fine for a school leader at a major public school event to pray is crazy.
TOTENBERG: Professor Laycock notes that at the time of the founding, the country was 99% Protestant and the early tradition of public schools was heavy-handed Protestant religious instruction and anti-Catholic textbooks, with Catholic kids beaten for refusing to read the King James Bible.
LAYCOCK: I don't think they're going to permit that again, but that's what they just said.
TOTENBERG: Villanova law school's Michael Moreland concedes that the facts in this case could cut either way. But he still thinks the court got it right. And he says that some of the court's school prayer precedents, but not all, may now fall by the wayside. Among those on firmer ground now, he says, are...
MICHAEL MORELAND: Historical practices that have gone on for a long time. And in a lot of parts of the country, that includes coaches saying prayers, and it might include things like moments of silence at graduations.
TOTENBERG: That said, the country is far different from what it was at the founding. And the court is far different from what it was just five years ago.
Nina Totenberg, NPR News, Washington.
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