In a lengthy article published by Sports Illustrated this week, author Greg Bishop uses politically charged language and straw-man arguments in an attempt to discredit the merits of the Joe Kennedy, the high school football coach at the center of a legal battle regarding his firing.
The Supreme Court is expected to rule on the case, Kennedy v. Bremerton School District, in the coming weeks. Kennedy alleges he was fired by the school for engaging in short, private prayers at midfield at the conclusion of games.
Bishop’s article takes the side of the lead lawyer for Bremerton School District, Rachel Laser, who is also the president of Americans United for Separation of Church and State. The opening paragraphs of the story describe Kennedy’s prayers as “performative.” The overarching theme is that the separation of church and state is the core of American democracy and it’s going to crumble away if this case is ruled in Kennedy’s favor.
Kennedy’s legal team, First Liberty, argues that religious expression, no matter the form, should not preclude any American from employment weather public or private.
“We are eager to give the Supreme Court another opportunity to protect the right of every American to engage in personal religious expression, including praying in public, without fear of getting fired,” First Liberty President Kelly Shackelford said.
“In time, we are confident Kennedy will be able to return to the field, and that the First Amendment rights of coaches and teachers will be restored—not only for Coach Kennedy’s sake, but for the sake of every person of faith in America.”
White Christian Nationalists Are to Blame
Bishop’s article hinges on the opinions of Laser, who describes Kennedy’s supporters as “white Christian nationalists” who were also responsible for helping put Donald Trump in the Oval Office six years ago.
The article says Laser is terrified because the Kennedy case “ha[s] transported her to an alternate universe of disinformation and propaganda—and, in that world, even democracy is in danger.”
Bishop paints a picture of Laser’s worldview as one that resents “white Christian fragility.” Those of opposing political views are referred to as “white Christian Nationalists” who are uncomfortable with America changing into something other than ‘white’.
Trump, of course, is the reason for this “fragility,” Bishop claims. “His proposed Muslim ban and anti-immigration stances, his border wall and inciting rhetoric; and his appointments of religious conservatives to the judiciary’s most powerful positions” are what Bishop states has embolden the “Christian conservative base” that individuals like Kennedy make up.
In Laser’s world, one can imagine a caricature of coach Joe Kennedy dressed as Thor, smashing into a stone foundation titled “democracy” with his hammer called “First Amendment.”
Laser believes that America’s Founding Fathers were also “white Christian Nationalists” who penned a Constitution to give rights to other white Judeo Christians just like themselves. Her ideas, though, fail to explain the inclusion of the Religious Test Clause in Article VI, Cl. 3 of the U.S. Constitution.
According to an Amicus brief filed in the Kennedy case the Religious Test Clause, “simply provides that ‘no religious test’ shall ‘ever’ be required as a qualification for federal office or positions of public trust.” Applied today, this means even public school teachers cannot be required to give up their own religious views to fulfill their job duties.
There is a distinct legal difference between allowing public expressions of faith, regardless of employer status, and the state imposing of religion on someone. This was an issue the framers of the US Constitution understood when they penned the Religious Test Clause.
As the Amicus brief further explains, “Such religious expression does not suddenly become government speech just because it occurs at a place of public employment.”
“Because of the well-understood personal and individual nature of expressions of faith, it would be wrong as a factual matter to strip such expressions of their individual significance by attributing them to a person’s employer,” The brief continues. “No one, for example, would ever view an Abercrombie employee’s decision to wear a headscarf at work as Abercrombie’s endorsement of Islam.”
That brief concludes that, “A Jewish person who teaches public school students while wearing a yarmulke is doing nothing different in kind than a teacher or a coach privately praying in the view of his students or others.”
While the Religious Test Clause is enshrined in the Constitution, the “separation of church and state,” actually is not. Interpretations of the Establishment Clause in a handful of cases over the last 60 years have contributed to the idea of separation between church and state, but it’s not explicitly written into the founding document.
“Experts” vs. “Experts”
Bishop spoke with five independent legal “experts” regarding the Kennedy case and found that three side with Laser, one sides with Kennedy and one sides with neither party. This section of the article then attempts to build a straw-man case for discrediting the legal merits of the Kennedy case.
For example, the article says, “The movement, according to Laser and three scholars, is backed by a billion-dollar industry that brands its argument not under ‘Christian nationalism’ but the more palatable ‘religious freedom.’ Laser (and three scholars) say that’s part of the disinformation campaign.”
How did the author choose which experts to consult? Two of the so-called experts even asked to remain anonymous for the story. A quick look at SCOTUS Blog reveals that more than 40 Amicus briefs were filed by legal experts weighing in on this case. To choose just three in support and one against is arbitrary.
The article continues that if the court rules in favor of Kennedy, “It will be giving a victory to a long-running campaign by Christian fundamentalists who are imposing their view of human life on the rest of society,” said Harvard University’s Laurence Tribe, one of the scholars included in the article. “That’s dangerous. I do think it’s a slippery slope.”
Amicus briefs filed on behalf of coach Kennedy dispel this fear, however, explaining that individual expressions of religion are neither coercive nor imposing on others.
“That’s what this case is about,” Laser claimed. “A movement that is so determined they are not willing to stop. They are willing to destroy our democracy to achieve their ends.”
It’s hard to imagine Democracy is in danger, however, from a ruling that would presumably re-enforce what is already written in the Constitution about exercise of religion and free speech.