The Ruling on the Field
Is the Supreme Court decision to rule in favor of a local Christian football coach bad for the Jews?
On Monday, the Supreme Court ruled in favor of a Bremerton, Washington, high school football coach who insisted on praying on the 50 yard line after games. The ruling, which came as part of a legal red wave that included the overturning of Roe v Wade, was met with outrage by many in the Jewish community.
“The decision strikes a serious blow against the Constitution’s Establishment Clause as has been interpreted since World War II,” wrote Marc Stern, chief legal officer for the American Jewish Committee, in a statement for the organization. “Worse, the decision subordinates conscience protecting aspects of separation of church and state to individual religious expression.”
The ruling effectively overturns five decades of protocol by undermining the 1971 Lemon v Kurtzman decision that created a test for determining if a government body is violating the establishment clause. Football coach Joseph Kennedy, who started praying on the 50 yard line in 2008 and was gradually joined by students, sued the Bremerton School District after he was placed on leave and his contract was not renewed in 2015. The lower courts ruled in favor of the district, but the Supreme Court took a different tack.
In a 6-3 vote along ideological lines, the Supreme Court ruled that Kennedy was acting within his personal and First Amendment rights. “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike,” wrote Justice Neil Gorsuch.
The decision worries Jews like Stern, who see this as backsliding on the wall between state and religion.
The AJC statement continues:
The Court’s opinion effectively invites indirect but no less real coercion of students who are attuned to hints from school officials who grade and evaluate them. The Court’s see-no-evil approach to the coach’s prayer will encourage those who seek to proselytize within the public schools to do so with the Court’s blessing. That is no advance for religious liberty.
This is the third decision in a week that confines the Constitution to an 18th-century America. The Constitution should not change with every new trend, but neither can it sensibly be read without regard to massive change in American life.
Stern sees the direction of the Supreme Court as a throwback to a prior century when American life was much different. “It’s legitimate to ask what a constitutional amendment meant historically,” he told me. “But how does that fit in what’s in front of us?”
Many Jews who went to public school in Christian-majority communities claim to have experienced religious coercion.
From singing Silent Night to getting penalized for not turning in homework after Yom Kippur, from dealing with the first day of school falling on Rosh Hashanah again to having Christian friends tell you that you need to accept Jesus to be spared from the depths of hell to even having teachers tease you for your religion, the public school experience can be taxing on Jewish students.1
But is that establishing religion in a public space? Is it actually coercion? Or is it just…annoying?
“The court agrees that you can’t coerce anyone,” Stern said. “But what does that mean?” Is a school Christmas concert with songs about Jesus, or a voluntary prayer in majority Christian school, coercive? “The AJC has been involved or opposed to religious expression in the public schools since the ’40s,” Stern said. “This is an old issue for the Jewish community. People feel they should be able to send their kids to school without one group or another’s religious indoctrination.”
It begs the question: If non-Christians still feel coerced into Christianity, then have the efforts to fight establishment even been that successful?
Shella Alcabes, a Jewish, Seattle-based litigation counsel for the conservative Freedom Foundation in Olympia, agrees with the Supreme Court’s decision and sees it as a First Amendment win. “It’s not the Supreme Court’s job or any court’s job to make policy,” she said. “Afterwards, if you don’t like the outcome, then you can like try to change things around it, but you can never change the most fundamental part, which is that you have a right to do something.”
As uncomfortable as Kennedy’s prayers may make some students, his First Amendment rights guarantee his ability to talk to Jesus on the field. It’s not the court’s job to make everyone happy.
“We know we’re different, and that’s fine,” Alcabes said, referring to Jewish Americans. “And we still belong to America, because we get to practice our religion freely here.”
For Stern, this decision opens up the possibility that all sorts of so-called religions could claim religious freedom. How would people feel if an identitarian church, or the Proud Boys, or Black Lives Matter activists held public prayers?
Alcabes brushes off this concern. It’s up to the people, not the state, to work out the kinks. “I guess the slippery slope is just not slippery or scary for me,” she said. “What matters is that you have a right, and then everyone has to figure out how to deal with the offense that they feel or the discomfort they feel from someone having certain rights.”
The ruling also opens the possibility that Jews could daven Mincha and that Muslims should be able to prostrate to Allah on the 50 yard line. Would that constitute coercion? Or would it simply be amusing? Or would it even be considered a win for religious freedom?
It’s a scary moment for liberals and many Jews, given the direction of the court and the moment we’re in. But perhaps it’s also an opportunity to lean into our identities, a chance to own our differentness. Maybe it’s time to pick up the ball.
This Week Last Year
Community Announcements
Check out the Seattle Jewish community calendar and the virtual calendar.
This week’s parasha is Korach.
Candlelighting in Seattle is at 8:51 p.m.
Become a Brisket level subscriber to have all your organization’s events featured with banner ads in The Cholent!
Shoutouts
In memory of Beth Alhadeff, who always thought my articles were just terrific.
Mazal tov v'todah rabah to all who worked to reestablish Seattle’s Jewish Community Relations Council as a place for our Puget Sound Jewish community to convene, confer, discuss and take action together to better our lives here. Especially to all the volunteers on its board, council and committees, to the staff who do such excellent work on all the details making the JCRC successful, and the board at the Jewish Federation of Greater Seattle for its support—yasher koach! —Linda Clifton
Rachel Rosenman at Federation, yasher koach, for leading a magical and beautiful Pride Shabbat experience. —Jim DiPeso
Paid monthly/annual subscribers can submit unlimited shoutouts, memorials, and announcements. The editrix has the right to moderate all content. Send them to thecholentseattle@gmail.com.
Just a few of the things that happened to me in public school in the 1990s.
I disagree with the ruling. As a child I experienced teachers praying in school and Christmas celebrations. It’s a lot of pressure on young children and totally unnecessary. There are a lot of places one can pray. Teachers hold a lot of power. Public schools need to be a safe place for all children and believe me, school led religious practices does not create a safe place for children to learn.
I'm all for prayer, but I think it can be done outside of the public domain. The prayers are being conducted at a public event on public property. I think that's inconsistent with the consitutions intent of separation of church and state. This ruling opens the door for additional acts of religious coercion.