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By not drawing clear lines, the Supreme Court encourages conflict

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shutterstock 1929940718 scaled By not drawing clear lines, the Supreme Court encourages conflict

Unless you are living under a rock, you have undoubtedly heard about some recent Supreme Court cases upending longstanding case law. We depend on the court for guidance on interpreting the Constitution. This court seems particularly fond of moving legal boundaries, but not so fond of providing concrete guidance.

Unfortunately, one such recent case, Kennedy v. Bremerton School District, involving a praying football coach, is expected to foster prayer in public schools due to the vague guidance the court provided. The court decided that Kennedy could quietly pray by himself on the 50-yard line after a football game because this was a time when he was not acting in his official capacity as a public school coach. The court declared that Kennedy must be allowed to use the time for a private prayer because this is a time when coaches can visit with family and check cellphones. Justice Samuel Alito was less than helpful in labeling this period of time between official duties as “a brief lull.”

If a “brief lull” is defined as any time someone can check a cellphone, it is easy to understand how the boundaries of this decision will be pushed. Perhaps the easier question is when can’t someone check a cellphone? This case also replaced the Lemon test, which was developed by the court in 1971, with its favorite new quasi-rule: Look to history and tradition. Whose history and whose tradition? By not defining this further to help guide public schools in understanding what is, by this court, deemed constitutional, the decision only guarantees future conflicts.

Coach Kennedy’s win has already been interpreted in an overly broad manner to support the notion that prayer is back in public schools. Some members of the school board in Chino Valley, Calif., suggested that the court’s decision means the board can reinstitute prayer in its meetings. FFRF has a vested interest in correcting this misinterpretation because it successfully litigated the case against the board to remove the prayers.

School board prayer is a prime example of how boundaries set by the court can be manipulated. In 1983, the court decided Marsh v. Chambers, in which it held that invocations to open legislative sessions were constitutional. The court claimed to reconcile its interpretation of separation of church and state with the fact that invocations were delivered at legislative sessions by the early Congress. The court held that legislative invocations were the exception to the rule and, ironically, served a secular purpose of solemnizing the proceedings. The court extended this exception to town boards in Town of Greece v. Galloway in 2014. In both cases, the court clarified that the prayers were delivered to an audience of adults and that they were not opportunities to proselytize.

Some public school boards, not wanting to miss the political opportunity to showcase religious fervor, open meetings with prayer. What’s good for a town board must be good for a school board, the reasoning goes. Three federal circuit courts have decided that the purpose and audience of public school boards differ significantly from the facts and circumstances in the legislative prayer scenario, making prayer in this setting unconstitutional. A big and important difference is that students are frequently present at meetings either as representatives on boards or for recognition. If anyone doubts that school board meetings are a different beast, then read the account of what happened in Georgia when a parent mob reacted to the unfounded rumor that a new hire would be teaching Critical Race Theory. Students present at the meeting started crying and “had to be rushed out of the room.” Sounds like a good place for a divisive prayer practice.

The Freedom From Religion Foundation receives many complaints regarding school board prayer. One such complaint involves the Rapid City Area Schools Board in South Dakota. Suddenly, without discussion, the board instituted prayer in October 2021. Since that time, many of the public comments at the meetings have addressed the invocations. FFRF presented a student activist award to a student who spoke to the board about student objections to the discriminatory Christian prayers. Although there is no explanation as to why the board started the practice, it is likely tied to the election of a board member who is a co-founder of a local family faith organization.

The Rapid City Area Schools Board, however, has learned a lesson about pushing boundaries. At a June 6 meeting, a local pastor delivered an invocation that was so inflammatory, the audio was edited out of the public recording. Accounts of people present described it as an attack on the LGBTQ community along with a push for prayer in school. Although no one stopped the invocation in progress, board members acknowledged the inappropriate nature of the prayer at a subsequent meeting and are in the process of instituting an invocation policy as a result. Perhaps the board now realizes what the public has tried to explain: Prayers are discriminatory and school board meetings are not an appropriate venue.

FFRF claimed a victory in a complaint regarding school board prayer in Lake Hamilton, Ark. Counsel for the school board reviewed the case law and advised the board that its practice of invocations is likely unconstitutional so it should discontinue the prayers. The invocation was removed from meeting agendas. This was just a sleight of hand, however, because the invocations continued.

If you have to disguise the prayer practice, you might have to admit something is wrong with your actions. FFRF recently received several complaints of school board prayer in Arrowhead Union High School District Board meetings in Wisconsin. The prayers were given by one board member toward the end of meetings when the board president asked for additional agenda items. The board member would speak up and announce he was going to pray. Then he changed his intro and only referred to the prayer as a personal statement. The prayer was neither an agenda item nor a personal statement. Fortunately, likely in response to criticism, the board member has announced he will now be delivering a prayer after meetings. This change means attendees will have the opportunity to leave and not participate in forced evangelism.

Even when the Supreme Court draws some semblance of a line, boundaries will be pushed. When the court draws a line as vague as a “brief lull” after a game — or anytime someone can look at a cellphone — as an appropriate time for prayer in a public school context, expect that prayers during brief lulls will abound. When the court does not reinforce a line it has drawn, such as allowing the expansion of the legislative prayer exception to public school boards, the practice may continue until the ballot box speaks.

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