May 3, 2022

Prayer at school.

Prayer at school.

Plus, the Roe v. Wade news and a question about abortion.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 15 minutes.

Prayer at school hits the Supreme Court. Plus, the Roe v. Wade news and a question about abortion.

A statue of Roger Williams, widely considered a champion of church and state separations. Photo: Kenneth C. Zirkel
A statue of Roger Williams, widely considered a champion of church and state separations. Photo: Kenneth C. Zirkel

Correction.

Yesterday, we had one important error and one very silly one. First, we referred to the U.S. Department of Education and the Institute of Education Sciences as a "progressive think tank." This came very late in our editing process and was a botched attribution from an article we were quoting that said the following: "Warren’s office said her source is data compiled by the National Center for Education Statistics and analyzed by Mark Huelsman, former associate director of policy and research for Demos, a progressive think tank."

Mark Huelsman works at a progressive think tank, and we erroneously attributed his work to NCES, which is an independent government organization.

In our "Have a nice day" section, we also described a wildlife bridge being built "10 miles" above a freeway in California. This, uh, would be quite the feat! It should have said 10 feet, of course. If you listened to yesterday's podcast, you'd know that I've been quite sick the last few days, so I'm chalking these up to some cold-induced errors.

These are the 60th and 61st Tangle corrections in its 145-week history, and the first corrections since April 21st. I track corrections and place them at the top of the newsletter in an effort to maximize transparency with readers.


Roe v. Wade.

Obviously, the biggest story in the country today is Politico's bombshell scoop that the Supreme Court is planning to overturn Roe v. Wade. There aren't enough adjectives left to describe how big a story it is, let alone the surprising nature of the way it was leaked.

But, as tempted as I was to call a late night audible and jump in to cover this today, I find that giving these pieces 24-36 hours to marinate often allows us to present the most accurate and balanced information. We don't need or want to be first, we need and want to offer the most thorough and fair coverage. So that's what we're going to do. We'll be diving into that story tomorrow.


Quick hits.

  1. Workers at a Staten Island Amazon warehouse have rejected a unionizing effort just weeks after a neighboring warehouse voted to become Amazon's first union. (The vote)
  2. The Supreme Court unanimously ruled that Boston violated the First Amendment rights of an activist who wanted to raise a christian flag in front of city hall during an event in 2017. (The ruling)
  3. President Biden is meeting with the parents of abducted journalist Austin Tice, who was kidnapped in Syria 10 years ago. (The meeting)
  4. Primary election season begins in Ohio and Indiana today. (The kickoff)
  5. Sen. Dianne Feinstein (D-CA), 88, is refusing to step down, despite widespread reports of her declining memory and cognitive function. (The story)

Today's topic.

Prayer in school. Last week, the Supreme Court heard arguments in Kennedy v. Bremerton School District, a case that could have implications for the divide between religion and education.

A brief summary of the case: The story involves Joseph Kennedy, a former football coach at Bremerton High School who made a habit of praying at midfield when games ended. From 2008 to 2015, Kennedy worked as a part-time coach for the school. He began praying at midfield after games and was occasionally joined by players from both teams who asked to pray with him. In 2015, an opposing team’s coach informed the school about Kennedy’s prayers. The Bremerton athletic director called Kennedy and expressed his disapproval; Kennedy then posted on Facebook that he thought he had just been fired for praying.

Days later, though, the school sent Kennedy a letter stressing that student prayer should be "student initiated," and asked that Kennedy not do anything to endorse those prayers. The school also said if Kennedy prayed, he should not be around students, and it should "not interfere" with his job responsibilities. Kennedy briefly stopped praying after games, but on October 14 informed the school he would start his private, post-game prayers at the 50-yard line again. Days later, Kennedy's midfield prayer became the subject of increased media and fan attention, and Kennedy was surrounded by players, parents, and press as he prayed at midfield.

Notably, Kennedy and the district disagree about the facts surrounding those events. The school district said Kennedy’s prayers created a chaotic scene that included members of the media and fans knocking over students in the marching band to join Kennedy. In response, the school suggested Kennedy pray in the locker room or after all the fans had left. Despite the warning, Kennedy continued to pray publicly at the next two games, and when the season concluded the athletic director suggested Kennedy's contract should not be renewed. Kennedy sued the school, saying its actions violated his rights under the free speech and free exercise clauses of the First Amendment, according to SCOTUSblog.com.

Key points: Kennedy claims he was fired for private prayer at midfield while the district contends he refused to stop holding public prayer. The district argues this created pressure for students to join him, along with legitimate safety concerns from the spectacle his prayer sessions caused.In lower courts, the school district has successfully argued that if Kennedy’s prayers continued, it was at risk of being sued for violating the First Amendment's establishment clause, which prohibits government entities from endorsing religion. Kennedy, meanwhile, argues that his brief, quiet prayer is protected First Amendment speech that schools cannot prohibit to try to avoid violating the establishment clause. Via Amy Howe at SCOTUSblog.com again:

Because teachers retain some free speech rights at school, Kennedy contends, everything teachers and coaches say and do is not necessarily government speech, which is not protected by the First Amendment. Therefore, he contends, the key question is whether speech by a teacher or coach is part of that employee’s official duties. For teachers, he observes, those duties include teaching a lesson, while a coach’s duties include calling plays and giving motivational speeches. But a brief, private prayer at the end of the game, he suggests, doesn’t fall into either of these categories. Instead, he writes, “[a]t a time and place when coaches and players were free to talk to family and friends, Kennedy sought to take a moment to talk to God." ... The school district counters that when Kennedy prayed at the 50-yard-line after games, everyone – from the district to students to Kennedy himself – all saw him as a coach.

Below, we'll take a look at some arguments from the right and left, then my take.


What the right is saying.

  • The right argues that Kennedy's expression of faith should be protected under the First Amendment.
  • Many frame his prayer as a personal act outside the duties of coaching.
  • They call on the court to clarify confusion about when religious expression is permitted in schools.

Joe Kennedy, the coach in question, also had an op-ed published in The Wall Street Journal.

"Over the years, my prayers developed into motivational talks in which I led players who chose to join me in prayer. When the school district eventually told me to stop doing that, I did. My commitment with God didn’t involve others. It was only to pray by myself at the 50-yard line after each game," Kennedy wrote. "But then the school district got lawyers involved, and they kept shifting the goalposts every time I complied. Eventually they said I had to refrain from any 'demonstrative religious activity' visible to students or the public. They suggested instead I walk across the field, up the stairs, across a practice field, into the main school building, down the hall and into the janitor’s office if I wanted to pray after games.

"I thought that would send a message that prayer is something bad that has to be hidden. I couldn’t send that message. So I simply asked to continue praying quietly on one knee at the 50-yard line after each game," Kennedy added. "Two days after my last postgame prayer, the school suspended me, even though it acknowledged there was 'no evidence that students have been directly coerced to pray with' me, and that I had complied with its directives 'not to intentionally involve students.' The school then gave me the first negative evaluation in my file, adding: 'Do Not Rehire.' I was fired for taking a knee in prayer by myself at the 50-yard line for 15 to 30 seconds after high-school football games."

In The Atlantic, David French said "let Coach Kennedy pray."

"In 2006, the Court decided a case called Garcetti v. Ceballos and brought the hammer down on public-employee speech. Richard Ceballos, a prosecutor in the Los Angeles district attorney’s office, sued his employer, claiming that he’d faced unconstitutional retaliation for objecting to the prosecution’s tactics in a case and cooperating with the defense," French wrote. "The Supreme Court rejected his claim, holding that speech by public employees is protected only if they’re speaking as private citizens, not when they 'make statements pursuant to their official duties.' But there was an interesting carve-out. The Court refused to extend its holding to 'speech related to scholarship or teaching.'

"This was confusing. The Court didn’t explicitly protect teaching, but it didn’t explicitly not protect teaching either. It punted the issue to the lower courts, and now, more than 15 years later, those courts have reached a rough consensus: College professors enjoy free-speech rights when speaking as educators; public-school teachers generally do not. Thus, for a public-school teacher to win a First Amendment case, they generally have to prove that their speech at work was personal, not professional," French wrote. "Combine a doctrine that deprives teachers of any freedom in their teaching with a school district that declares that virtually any public speech at school is professional and not personal, and you create a legal environment that treats teachers as pure instruments of state expression, required to spout only state-approved ideas from the moment they walk onto campus until the moment they leave."

In Newsweek, Notre Dame law professors Richard Garnett and Joseph Graziano said the court should rule in Kennedy's favor and end the confusion.

"The First Amendment protects religious expression, even in public places. It does not require—indeed, it does not permit—government officials to censor such expression," they wrote. "Arguing before the Court, the district's lawyer pressed the claim that Kennedy's prayers were somehow coercive. Of course, the Constitution does not permit government officials, including public school employees, to compel or require participation in religious worship or prayer. As the coach's lawyer reminded the justices, though, there is no evidence of any coercion in this case.

"The reasons originally given by the district for punishing the coach were not about alleged coercion but instead reflected a misunderstanding of the Constitution's Establishment Clause. The district was afraid that by permitting Kennedy's personal religious activity, it would somehow have 'endorsed' religion. But as the coach's lawyer, and several of the justices, observed, 'the government does not endorse private religious speech just because it takes place on the school side of the gates.' Coach Kennedy's case provides the Court with an opportunity to clarify its infamously muddled constitutional rules governing religious expression and symbols in the public square," they added. "Such a cleanup would provide much-needed guidance to lower courts, local officials and school administrators, and would prevent funds that are needed for books and teachers from being drained by unnecessary lawsuits."


What the left is saying.

  • The left argues that there is evidence Kennedy violated the rights of his players.
  • They say the court should make it clear that the right to religious expression is limited in school.
  • Some argue that his prayer was not actually private, but that it should have been.

In Fox News, Patrick Elliott argued that the religious liberty that's really at stake belongs to "athletes who are at the mercy of their coach."

"Kennedy’s attorneys have sought to wave a magic wand and distort the facts of the case in order to secure a victory before the court and the court of public opinion. At various times, they have claimed that Kennedy’s post-game prayers on the 50-yard line were 'private,' 'silent' and 'personal.'  None of those descriptors is accurate," Elliott wrote. "An appellate judge even called Kennedy’s attorneys’ version of events a 'deceitful narrative.' For years, Kennedy imposed his religion on football players by reciting team prayers not only on the field at the 50-yard line after games but, tellingly, also in the locker room. He bragged about his 50-yard line prayers on Fox News Radio in October 2015, saying that the 'entire team' joined him. It was apparent at the time that he wanted to continue to involve students in the prayers.

"At the homecoming game in 2015, Kennedy and an onslaught of pious performance artists rushed the field after the game, knocking over some students. Kennedy invited a state legislator to join his prayer and address the team. True religious freedom means that students are not pressured or encouraged by school staff to engage in religious activity," Elliot said. "Religion is personal and students’ rights of conscience must not be interfered with by a coach who wants to impose religion on other people’s children. One Bremerton parent reported that his son felt 'compelled to participate' because he feared that he 'wouldn’t get to play as much.' Other parents said that their children participated in the prayers because they didn’t want to be separated from the team.”

In Slate, Mark Joseph Stern praised Brett Kavanaugh for a "piercing" series of questions during oral arguments.

"Midway through arguments, [Kavanaugh] forced Kennedy’s lawyer, Paul Clement, to address [the environment his prayer created] directly, asking: 'What about the player who thinks, if I don’t participate in this, I won’t start next week? Or the player who thinks, if I do participate in this, I will start next week?' The best Clement could offer was a bromide: 'If any coach or teacher does it, shame on them and they should be punished.' This answer, it seems, did not satisfy Kavanaugh, who launched into a monologue about his still-unaddressed concerns:

"I guess the problem at the heart of it is you’re not going to know. The coach is probably not going to say anything like “The reason I’m starting you is that you knelt at the 50-yard line.” You’re never going to know. And that leads to the suspicions by parents—I think, I’m just playing out what the other side is saying here—the suspicion by parents that the reason Johnny’s starting and you’re not is [because] he was part of the prayer circle. I don’t think you can get around that. That’s a real thing out there. That’s going to be a real thing in situations like this. I don’t know how to deal with that, frankly."

In The Los Angeles Times, Randall Balmer wrote "Jesus said to pray in a closet, not on the 50-yard line."

"As an Episcopal priest, I’d be the last person to gainsay the importance of prayer. But context matters. It matters a lot," Balmer wrote. "Any time prayer is compulsory or coercive in a public context, it can violate the establishment clause of the 1st Amendment, which forbids the state from favoring one faith over another (or no faith at all). But it also violates the spirit of prayer itself. Jesus had something to say about the matter. He castigated the religious authorities of his day for their public prayers. He called them hypocrites, 'standing in the synagogues and in the corners of the streets' so they could be seen by others.

"Jesus, who rarely in the New Testament prayed publicly, instructed his followers instead to 'enter thy closet, and ... shut thy door' to pray (King James version, Matthew 6:6). Pray in a closet, not at the 50-yard line. For the faithful, an even greater danger than coercion is trivialization," Balmer wrote. "The power of religion lies not with coercion but with faith itself. And religion has flourished in the United States as nowhere else precisely because it is uncoerced, precisely because of the 1st Amendment and the separation of church and state. The 1st Amendment set up a free marketplace for religion, where all traditions compete without the state expressing a preference."


My take.

Fun fact about me: I'm a descendant (on my father's side) of Roger Williams, the founder of Rhode Island, who is famous for his advocacy of religious freedom and the separation of church and state. I'd be remiss not to invoke him here, and his call to separate "the garden of the church" from "the wilderness of the world." As Randall Balmer explains in his op-ed, Williams viewed the wilderness not as a place of calming nature but rather great danger, and his view was that in order to protect the integrity of our faith, we must keep it isolated from politics and the state.

Often, when covering Supreme Court cases or decisions like this, I find myself supportive of the standard the ruling sets but concerned about the practical outcome of the ruling in the immediate sense. In this case I feel the reverse: Worried that the court will further blur the lines between church and state, but sympathetic to Kennedy, who I think should be able to pray at the 50-yard line after games.

The question that clarified this for me came from Clarence Thomas, who proposed a hypothetical: If the coach, instead of taking a knee for prayer, took a knee during the national anthem in a protest against racism, would the school view that as government speech? The school's lawyers said yes, but frankly I don't believe them. Protests against racial injustice have been happening across the country for several years, and rarely are they viewed as representative of a school, government or governing body. In fact, they're most often viewed as an athlete, coach or teacher courageously bucking some expected norm (like standing for the national anthem) — separate from the employer or entity or team they are representing. If Kennedy had taken a knee for racial justice, I would not view that as the Bremerton School District protesting racism. I would view it as Kennedy protesting racism.

I'm not saying that makes this case clear cut. On the contrary, former players have said that praying with Kennedy felt "expected" or that they participated because they did not want to feel separated from the team. That should be the death blow to Kennedy's case, and it's why I'm concerned the court will rule in his favor. As a Jew and a former high school athlete, I can understand both the sense of being a religious minority at school and the desire to stand shoulder to shoulder with teammates. This is why Kennedy's prayer should be silent and solitary, and it's why there was such a big problem when it wasn't.

Still, I’m conflicted about this case both because I find Kennedy's life story inspiring and his argument — that a silent prayer should be allowed — compelling. He's a troubled kid who found prayer and G-d, then became a beloved coach who wore his faith without shame. I don't find the act of a silent, solitary prayer at the end of a football game objectionable in any way, and I reject the notion that Kennedy was an aggressor or needed to be stifled. But the evidence does suggest that at some point the prayer became a spectacle, one that introduced “church” into a setting where — by law — it is meant to be forbidden. That Kennedy rejected the school’s alternative solutions and that players and parents felt coerced by his prayer hampers his case dramatically.

As I’ve argued in stories about LGBTQ issues or critical race theory in schools, I do not think teachers should be simple conduits of the state. They are people with beliefs and experiences that they should be allowed room to express in class. My preference would be to live in a country where this story did not become a court challenge, and Kennedy could wear his faith proudly but appropriately within the bounds of his role as a coach. But now that the question is before the court, my hope is that they err on the side of fortifying the separation of church and state, not muddying it even further.

Have thoughts about "my take?" You can reply to this email and write in or leave a comment if you're a subscriber.


Your questions, answered.

Q: Last week, you allowed anti-abortion activist Josh Brahm to answer a question about abortion. You cryptically noted that you did not agree with his response, but understandably shared it anyway since the question was sort of addressed to an anti-abortion activist. What about Josh's answer did you not agree with, though?

— Lisa, Maryland

Tangle: Last week, I let Josh (who is a Tangle reader and friend!) answer this hypothetical question from a reader:

"Suppose you have a couple with one very young child, and that child has fallen mortally ill. There is a medical procedure that may save the child's life, but it requires the participation of one of the parents. The child will definitely die if they do not undergo the procedure. Can we morally and/or legally force either parent to participate in the procedure? If not, then how is the case of abortion different? If so, then can we force people to give up blood, organs, tissue, etc. to sick people?"

I think this is a very good question, and it strikes at part of what I find so confounding about many arguments to make abortion illegal. Which is why I asked Josh to answer it. I'm not going to rehash the whole thing here, especially with the Roe v. Wade story on the docket for tomorrow. It was only a week ago, so most Tangle readers here now were also reading then, and you can find Josh's answer here if you’d like to read it.

For starters, Josh began by saying that most pro-choice people "aren’t primarily pro-choice because they believe the fetal human isn’t a person, but because they believe the government shouldn’t tell a woman what to do with her body, or something in her body, even if that thing is a person."

Anecdotally, I don't think this is true. I think a lot of pro-choice people recognize a fetus as having the potential to grow into a person, but also view it as something markedly less than an individual that deserves the same rights as a mother or newborn. Most pro-choice Americans I've heard discuss abortion argue that a fetus — especially in the first few weeks — is little more than a "clump of cells." Many also make this point about "personhood" by noting that, for instance, you can't know if you're having twins or triplets until roughly 10-12 weeks of pregnancy. So how could you possibly define anything before that as an individual person?

Fundamentally, I think the pro-choice side views a fetus as "less than" a newborn, and much more as part of the woman's body, which is precisely why they find it so objectionable that the government can regulate how they navigate pregnancy, especially early on.

Josh also re-wrote the analogy to propose a scenario where he had to donate a kidney to me to keep me alive. Of course, Josh's analogy was meant to be similar to the one the reader proposed, but I think it speaks to the complexity of this issue that it's uneven and imperfect to frame it this way. My personal belief is that there is a marked difference between "conception" and "personhood," and I don’t think the analogy does enough to address that, which definitely biases my criticism.

Still, he wrote that the "morally relevant difference" between forcing a person to give a kidney to a dying friend and having an abortion is the distinction between "not helping someone and directly killing them." I thought his framing of the reader's analogy did little to address the reality of pregnancy. Josh, for instance, proposed two passive decisions: not giving a kidney to a dying friend and not terminating a pregnancy.

But the difference between not donating a kidney and carrying a pregnancy to term is massive. I understand that Josh is arguing there is a difference between an abortion (where a life is taken) and refusing a kidney donation (where a life is being lost and nobody saves it), but a woman who gives birth to a perfectly healthy baby is changed forever (physically and emotionally) and faces very real danger until (and immediately after) giving birth. Statistically, carrying a pregnancy to term (23.8 deaths per 100,000 in the U.S., even with access to legal abortion) is far more dangerous than donating a kidney (7 deaths per 100,000 donations for the healthy donor). Given that, I struggle with the rationale that an abortion is any more of an “active murder” than allowing a friend to die when you’re perfectly capable of safely giving him your kidney.

As a risk assessment alone, I think I could make a convincing argument that refusing to donate a kidney to a dying family member is much more morally objectionable than, say, having an abortion 10 weeks into a complicated pregnancy. Even if I’m accepting that the life of a friend is equal to the life of a fetus, I didn't feel that Josh addressed that argument adequately (though I’m sure he’s already writing me an email!).

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


A story that matters.

Starting November 1st, employers in New York City will be required to post the maximum and minimum salaries for openings they are hiring for. The new rule is becoming a trend across the U.S., with similar laws in place in Colorado and Washington, and may be the dawn of a new era of salary transparency. Advocates of the law say it will improve equal pay and businesses can post a wide range of salaries if they desire. Opponents of the law say it will hamper their ability to hire in an already tight labor market. The law was supposed to go into effect this month but was delayed until November. Axios has the story.


Numbers.

  • 30%. The percentage of U.S. adults who say public school teachers should be allowed to lead students in Christian prayer.
  • 46%. The percentage of U.S. adults who say public school teachers should not be allowed to lead students in Christian prayer.
  • 26%. The percentage of U.S. adults who say they don't know or refused to answer.
  • 19%. The percentage of U.S. adults who say the federal government should stop enforcing the separation of church and state.
  • 54%. The percentage of U.S. adults who say the federal government should continue to enforce the separation of church and state.
  • 27%. The percentage of U.S. adults who say they don't know or refused to answer.

Have a nice day.

Scientists in Texas say they have created a "Pac-Man" protein that breaks down plastic and could open the door to eliminating billions of tons of landfill waste. The enzyme destroys polyethylene terephthalate (PET), the chemical that is found in plastic packaging and textiles. “The possibilities are endless across industries to leverage this leading-edge recycling process,” Professor Hal Alper from The University of Texas at Austin, said. “Through these more sustainable enzyme approaches, we can begin to envision a true circular plastics economy.” PET makes up 12% of all global waste. In some cases, the enzyme can break it down in as little as 24 hours. Good News Network has the story.


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