Does free speech outweigh a violation of the establishment clause... looks like we'll find out soon enough.

[Lisa]

Supreme Court preview: Kennedy v. Bremerton School District - Harvard Law School

The Supreme Court stands poised to decide whether a high school coach’s penchant for prayers with players poses First Amendment problems.

today.law.harvard.edu

To me this should be a no-brainer but to others, perhaps not.

His free speech or religious rights do not permit him to encourage prayer with impressionable students who are taught to be team players while on the job as a state actor.

Any prayer must be absolutely voluntary with no hints of repercussions if they refuse to take part, which doesn't exist between a coach and a player. This coach's actions are constitutionally prohibited.

The U.S. Department of Education put it this way in its 2003 guidelines on prayer in public schools:


“When acting in their official capacities as representatives of the state, teachers, school administrators, and other school employees are prohibited by the Establishment Clause from encouraging or discouraging prayer, and from actively participating in such activity with students. Teachers may, however, take part in religious activities where the overall context makes clear that they are not participating in their official capacities. Before school or during lunch, for example, teachers may meet with other teachers for prayer or Bible study to the same extent that they may engage in other conversation or nonreligious activities. Similarly, teachers may participate in their personal capacities in privately sponsored baccalaureate ceremonies.”

Can teachers and administrators pray or otherwise express their faith while at school? | Freedom Forum Institute

As employees of the government, public school teachers and administrators are subject to the establishment clause and thus required to be neutral concerning religion while carrying out their duties. That

www.freedomforuminstitute.org

 

[CaughtInThe]

If they rule incorrectly this will backfire MASSIVELY (for Christians specifically).

 

[Buckeyes85]

Many of you are off on tangents here. There is no problem with the coach praying, or groups of teacher's praying.
The issue here is: when the coach, who absolutely is a state actor (the term "government" is not really correct) leads a voluntary prayer midfield necessarily endorsing or establishing religion in that those who might choose not to participate are more or less compelled to do so lest they be ostracized from their teammates?
I think it's a close call, but the school board probably got it right.

When I played HS football 40 years ago, I lived in a small community so deeply catholic that you might as well have considered our school a parochial school. The "thought of the day" read over the intercom each morning was often a short verse directly from the bible. And before leaving the locker room for each game, the coach huddled all players and we did the lord's prayer. And despite being a non believer like some others you absolutely felt compelled to participate. That was a no brainer violation of the establishment clause. But this situation? Not so clear cut.

 

[ttwtt78640]

That makes no sense. First, the teachers are choosing to be part of the prayer circle. Second, who said it was only one religion allowed?

Yep, most are stuck on the prohibiting the establishment of (a specific) religion part of the 1A, while totally ignoring not prohibiting the free exercise of religion part of the 1A.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 

[TheParser]

C'mon, man!

If football players can kneel without being penalized while the national anthem is being played , then surely football players can decline to kneel without being penalized while their coach is saying a prayer.

 

[Buckeyes85]

Yep, most are stuck on the prohibiting the establishment of (a specific) religion part of the 1A, while totally ignoring not prohibiting the free exercise of religion part of the 1A.

Tell me how this man's freedom to exercise his religion is being infringed in the slightest. Can he go to any church he wants to? Yes. Can he walk up and down the streets of his hometown preaching the good book? Yes. Can his players attend the same church he attends? Yes. Can they pray together there? Yes.
Can his players even come over to his house and pray with him there if they want to? Yes. Does his employer demand he follow a certain religion? No. Does his employer demand he personally renounce all religion? No. Does his employer expect that while working in his capacity for the school that his private religious beliefs largely remain private? Yes.

So again, walk me thru the free exercise issues here.

 

[ttwtt78640]

Tell me how this man's freedom to exercise his religion is being infringed in the slightest. Can he go to any church he wants to? Yes. Can he walk up and down the streets of his hometown preaching the good book? Yes. Can his players attend the same church he attends? Yes. Can they pray together there? Yes.
Can his players even come over to his house and pray with him there if they want to? Yes. Does his employer demand he follow a certain religion? No. Does his employer demand he personally renounce all religion? No. Does his employer expect that while working in his capacity for the school that his private religious beliefs largely remain private? Yes.

So again, walk me thru the free exercise issues here.

After the game (school sponsored event) is over he is no longer ‘on the clock’ simply because he remains on school property.

Using your under the employment of the government and while on public property standard, it would be unconstitutional for (publicly employed) chaplains to pray or lead others in prayer.

https://www.federalpay.org/employees/occupations/chaplain/2017

 

[Shrink726]

Tell me how this man's freedom to exercise his religion is being infringed in the slightest. Can he go to any church he wants to? Yes. Can he walk up and down the streets of his hometown preaching the good book? Yes. Can his players attend the same church he attends? Yes. Can they pray together there? Yes.
Can his players even come over to his house and pray with him there if they want to? Yes. Does his employer demand he follow a certain religion? No. Does his employer demand he personally renounce all religion? No. Does his employer expect that while working in his capacity for the school that his private religious beliefs largely remain private? Yes.

So again, walk me thru the free exercise issues here.

Very well stated and spot on.

 

[KingLeo]

Can a group of players on their own decide they want to pray before a game? Sure.
Can a coach of a public high school make it mandatory that all players participate in a prayer before a game? No.

 

[Shrink726]

Can a group of players on their own decide they want to pray before a game? Sure.
Can a coach of a public high school make it mandatory that all players participate in a prayer before a game? No.

Sorry. That doesn't go far enough. The coach has no right to even allow such a group prayer on publicly funded property. To do so effectively establishes the dominance of one religion over others and margonalizes those of other faiths and those who are atheists.

Fer chrissakes you're in school 6 hours a day, 180 days a year. You are free to do your idiotic praying at any other times. Wtf is the matter with these people who feel the need to pray every minute of every day. They belong in a friggin mental hospital.

 

[Buckeyes85]

After the game (school sponsored event) is over he is no longer ‘on the clock’ simply because he remains on school property.

Using your under the employment of the government and while on public property standard, it would be unconstitutional for (publicly employed) chaplains to pray or lead others in prayer.

https://www.federalpay.org/employees/occupations/chaplain/2017

The flaw in your argument is conflating being "on the clock" as synonymous with being a state actor. An unpaid volunteer can be a state actor when doing work or serving in a capacity for the "state."

And frankly, I have no idea what your point about chaplains leading prayer is about. If you mean such as those employed by the military, they are providing a desired service to the troops that is entirely voluntary for the service members. That is the establishment issue that you seem to be missing.

 

[Buckeyes85]

Sorry. That doesn't go far enough. The coach has no right to even allow such a group prayer on publicly funded property. To do so effectively establishes the dominance of one religion over others and margonalizes those of other faiths and those who are atheists.

That is not correct. There is absolutely no ban on students choosing voluntarily to get together and pray while on public property. In fact, many schools have chapters of the Fellowship of Christian Athletes who meet on school grounds. But it is entirely voluntary and completely permissible under the 1st amendment. (This coming from an atheist).

 

[ttwtt78640]

Can a group of players on their own decide they want to pray before a game? Sure.
Can a coach of a public high school make it mandatory that all players participate in a prayer before a game. No.

First of all, the prayer was post-game, not pre-game.

The school district’s case is based entirely on (any?) participation by the coach in prayer makes it ‘potentially coercive’ which, IMHO, is a ridiculous legal argument (or standard).

How, exactly, can one disprove what potentially might (possibly at some future time) happen? That is a clever legal tactic, but forces the other side to try to prove a negative, rather than their side having to provide any evidence of actual coercion.

You seem to have taken that a giant step further, by stating that participation in post game prayer was mandatory, which even the school district never claimed.

 

[ttwtt78640]

The flaw in your argument is conflating being "on the clock" as synonymous with being a state actor. An unpaid volunteer can be a state actor when doing work or serving in a capacity for the "state."

And frankly, I have no idea what your point about chaplains leading prayer is about. If you mean such as those employed by the military, they are providing a desired service to the troops that is entirely voluntary for the service members. That is the establishment issue that you seem to be missing.

Even the school district never claimed that prayer participation was mandatory. The school district’s (lame?) claim was that it was “potentially coercive” to have the coach lead (or participate in) the voluntary post-game prayer.

 

[Lovebug]

Belief in fairy tales is really so annoying and speaks to the victims' profound lack of critical thinking skills.

Idiots who succumb to such patent nonsense should not be teaching children.

Should be a matter of law and not one's faith or lack thereof. Thanks for your respectful opinion on the matter.

 

[lwf]

Sorry. That doesn't go far enough. The coach has no right to even allow such a group prayer on publicly funded property. To do so effectively establishes the dominance of one religion over others and margonalizes those of other faiths and those who are atheists.

I don't see how allowing prayer on publicly funded property establishes the dominance of one religion over another? It would be the disallowing of all but one sort of religious activity that would establish the dominance of that religion, or making said religious activity mandatory. But I think you're making a leap in concluding that simply allowing any particular religious activity equals state endorsement of it.

 

[ttwtt78640]

I don't see how allowing prayer on publicly funded property establishes the dominance of one religion over another? It would be the disallowing of all but one sort of religious activity that would establish the dominance of that religion, or making said religious activity mandatory. But I think you're making a leap in concluding that simply allowing any particular religious activity equals state endorsement of it.

Exactly, what comes closer (to establishing a religion) is having Christmas (Christ’s mass?) as a public holiday (holy day?). celebrating Easter on the White House lawn or states having blue laws. Most see those as simply helping to allow the free exercise of a (popular?) religion - not as establishing Christianity as the state (or national) religion.

 

[KingLeo]

First of all, the prayer was post-game, not pre-game.

The school district’s case is based entirely on (any?) participation by the coach in prayer makes it ‘potentially coercive’ which, IMHO, is a ridiculous legal argument (or standard).

How, exactly, can one disprove what potentially might (possibly at some future time) happen? That is a clever legal tactic, but forces the other side to try to prove a negative, rather than their side having to provide any evidence of actual coercion.

You seem to have taken that a giant step further, by stating that participation in post game prayer was mandatory, which even the school district never claimed.

Pre-game or post-game, does not matter.
The Constitution forbids public school officials, that would include coaches, from directing or favoring prayer in their official capacities.

 

[ttwtt78640]

Pre-game or post-game, does not matter.
The Constitution forbids public school officials, that would include coaches, from directing or favoring prayer in their official capacities.

The Constitution never mentions “public school officials”. Please at least try to make factual assertions.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 

[KingLeo]

The Constitution never mentions “public school officials”. Please at least try to make factual assertions.

So public school officials are able to make prayer or religious rules for their schools?
No they are not.

 

[Lisa]

After the game (school sponsored event) is over he is no longer ‘on the clock’ simply because he remains on school property.

Using your under the employment of the government and while on public property standard, it would be unconstitutional for (publicly employed) chaplains to pray or lead others in prayer.

https://www.federalpay.org/employees/occupations/chaplain/2017

Just the idea of public employees that work as a chaplain is borderline unconstitutional. He can pray but he needs to do it on his own time and not as part of any school activity. He cannot encourage or even suggest that students take part in any religious activity because as a coach the student athletes are taught to follow his lead.

Religion and the state are to be kept absolutely separate. He was hired as a coach and not in any religious activity.

The Constitution never mentions “public school officials”. Please at least try to make factual assertions.

As a public employee, he is a state actor, and religion is not part of his job description.

A requirement for claims that arise under the due process clause of the Fourteenth Amendment and Civil Rights legislation, for which a private citizen seeks relief in the form of damages or redress based on an improper intrusion by the government into his or her private life.


The U.S. Supreme Court has established that the protections offered by the Fourteenth and Fifteenth Amendments to the U.S. Constitution apply only to actions authorized or sanctioned by state law. The "state-action" requirement means that private acts of racial discrimination cannot be addressed under these amendments or the federal civil rights laws authorized by the amendments.


The Fourteenth Amendment prohibits a state from denying any person due process of law and the Equal Protection of the law. The Fifteenth Amendment prohibits a state from infringing on a person's right to vote. Both amendments were passed after the Civil War to guarantee these constitutional rights to newly freed slaves. During Reconstruction, Congress enacted many laws that it claimed were based on these amendments. Armed with this constitutional authority, Congress, in the civil rights act of 1875, sought to prohibit racial discrimination by private parties in the provision of public accommodations, such as hotels, restaurants, theaters, and public transportation.The Supreme Court struck down the 1875 act in the Civil Rights cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883). It held that under the Fourteenth Amendment, "it is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment." The Court relied on language of the amendment that provides that "no state" shall engage in certain specified conduct.

State actor

Definition of State actor in the Legal Dictionary by The Free Dictionary

legal-dictionary.thefreedictionary.com

 

[ttwtt78640]

So public school officials are able to make prayer or religious rules for their schools?
No they are not.

What prayer or religious rules are you talking about? The OP case is about a school district doing just that. They fired a coach for his free exercise of religion (praying after games) based on the potential for (possible future) coercion, while not offering any evidence whatsoever of actual coercion. The SCOTUS will decide if that violated the 1A rights of the coach.

 

[Lisa]

What prayer or religious rules are you talking about? The OP case is about a school district doing just that. They fired a coach for his free exercise of religion (praying after games) based on the potential for (possible future) coercion, while not offering any evidence whatsoever of actual coercion. The SCOTUS will decide if that violated the 1A rights of the coach.

He does have any religious rights while at work in the company of students. If he was praying in his office or in the teachers lounge this would be different but he is praying in the full view of hi student-athletes, which is not permitted. A public school teacher is not permitted to have visible religious jewelry or have a religious book such as a bible visible on their desk because those are considered coercive. Their job is secular and it is top be kept that way.

Change his religion from likely protestant Christian to Muslin, Hindu, Humanist or Satanist and then how would that play with christian parents? Christian coaches do not have more rights because their share religious beliefs with the students or the voters.

 

[Buckeyes85]

Even the school district never claimed that prayer participation was mandatory. The school district’s (lame?) claim was that it was “potentially coercive” to have the coach lead (or participate in) the voluntary post-game prayer.

Yea, I get the part it was not mandatory. That would have been a no brainer violation.

As for your claim of lame, let me ask, have you ever played on an organized sports team such as football where bonding with your fellow players as "team mates" and bonding to your coach are critically important? Many times more important than the relative skill level of the individual players.
You do everything together as a team: you run together, you lift together, you practice together, you ride together to/from games, and yes- you even shower together- all as a team. And you hang on every word your coach says because he/she is the coach.

Now, post game coach wants to lead a voluntary prayer midfield, which 80 out of 90 of your team mates are all for because they share his religion. Do you want to tell me a 15-18 year old kid on that team would not feel some coercion to participate?

 

[Craig234]

What this means in practice is that only the approved religion, secularism, is permitted in public schools.

That's false. Not allowing some religious views to be supported by the state is not enforcing other religious views. Your argument is like saying that banning eating in class is "allowing the fasting diet over other diets, it's hypocritical because that's still a diet, it's allowing eating, it's just allowing the eating of nothing instead of the eating of candy." But far be it for someone to get through to you with your right-wing 'poor you victim of the liberals' mentality.