30 June 2022

The US Supreme Court is aggressively asserting its right-wing politics

The Court’s latest decision, on religious liberty, exposes its desire to take America back to the time of its founding.

The former Bremerton High School assistant football coach Joe Kennedy answers questions after his legal case, Kennedy vs Bremerton School District. Photo by Win McNamee/Getty Images

WASHINGTON DC – The US Supreme Court has handed down a host of decisions over the past seven days. A majority of justices made it easier to carry a concealed weapon; harder to get an abortion; easier to gerrymander on racial lines; and harder to maintain the sovereignty of native American lands. All of these decisions paint a picture of the Supreme Court as it is now: far to the right, and aggressively asserting its power and its politics.

But it was Monday’s case (27 June), Kennedy vs Bremerton School District, that most explicitly reveals the project of this court.

In 2008, Joseph Kennedy, a high school American football coach in Washington state, began reciting Christian prayers on the field after games. Students were allowed to join in. In time, a majority of the team did, and he raised a football helmet up above him while leading them in Christian prayer. He also led prayers before games in locker rooms. This went on for years. The school district asked him to stop in 2015 and asked him to pray privately or while not at work, since there were non-Christian students too.

To read the decision written by Justice Neil Gorsuch (one of the three justices appointed by Donald Trump), one would think that Kennedy was already praying quietly off to the side. Gorsuch wrote that the prayers were “not delivered as an address to the team, but instead in his capacity as a private citizen”. As Justice Sonia Sotomayor’s dissent, which included a photo, made clear, this is not what happened. Nevertheless, Gorsuch wrote that Kennedy’s rights were being violated. “Learning to tolerate speech or prayer of all kinds” is, per Gorsuch, “part of learning how to live in a pluralistic society”.

Douglas Laycock, a professor of law at the University of Virginia who co-authored a brief in the case, wrote in an email to the New Statesman: “This case should not have been about the religious liberty of the coach, who was acting as a government employee. It should have been about the religious liberty of the football players, students who were under his supervision and subject to his authority. They were pressured into joining him in prayer, or pretending to pray, whether they wanted to or not.”

The First Amendment’s establishment clause bars the government from making any law “respecting an establishment of religion”. This means that the US cannot establish an official religion, and also means that the government cannot favour any single religion. One often hears that America is a Christian country. Culturally, this may be true. But formally, it can’t be.

When the Republican congresswoman Lauren Boebert said this week that she was “tired of this separation of church and state junk” because there is nothing in the constitution saying that there should be a separation of church and state, and that the church should lead the government and not the other way around, she is wrong. Even those who want to pretend that we can only work from what is explicitly written in the constitution, as conservatives sometimes do, the establishment clause is quite clearly there.

In practice, there have always been moments when the line blurs between the public and private, the sacred and the secular. I could point to one example from the 1950s, as Rachel Kranson notes in her book Ambivalent Embrace, Jewish parents fighting to keep Christian symbols and celebrations out of suburban public schools were called “no-good communists” by their neighbours. Or I could point to my own upbringing: I grew up Jewish in a largely Catholic town. In December 2005, at a Christmas tree-lighting ceremony on public ground, a priest gave a Catholic (as opposed to a generic) prayer. The town supervisor at the time, who was Jewish, criticised this as inappropriate. It was the supervisor who ended up apologising, because while the constitution may have said that the government should not favour any single religion, the culture of the community said otherwise. (This was written up in the New York Post under the admittedly clever headline, “Oh, Holy Fight!”) Many communities navigate this reality: formally, no religion is supposed to dominate, but, realistically and culturally, sometimes and in some places, one does.

But this week’s decision tells us that that wasn’t good enough. It wasn’t enough for us to formally have separation of church and state while culturally being dominated, in most communities at least, by Christianity – which is, admittedly, the largest religion in the US. This week’s decision means formal domination is now possible.

There were members of minority religious groups that cheered the ruling. Adugath Israel of America, a leading Orthodox Jewish group, praised the decision (though it later clarified, “Agudath Israel has long expressed concern about and opposition to denominational public prayer and the proselytization in schools”). But Orthodox Jews, who make up about 10 per cent of American Jews, attend Jewish day school (which is to say, not public school) more than their non-Orthodox counterparts. Young people who are not Christian – but who are Jewish like me, or who are Muslim, or Buddhist, or Hindu, or anything else, including atheists or agnostics – deserve the option and opportunity to attend public school without being made to pray in a faith that isn’t theirs.

“The opinion says that all establishment clause cases should now be controlled by a test of history and tradition: if the founding and early national generations did it, it must be constitutional,” wrote Laycock. “The obvious problem with that test is that it looks to practices from a time in which the white population was about 99.5 per cent Protestant… Traditional practices have very different constitutional implications now that the country is just over 60 per cent Christian.” The US will never be as firmly under the control of white, Christian men as it was at its founding. Hundreds of years have gone by. The country has changed. The clock cannot be turned back. But looking at the Supreme Court decisions this week – particularly this one, in which Gorsuch shrugged away religious liberty – it is clear that the justices are intent on trying.

I have written before that overturning Roe blurs the separation of church and state. But the Gorsuch decision goes further: it threatens to erase it. America First Legal, a conservative advocacy group, said it hoped the Supreme Court would go further and allow states to determine whether and to what extent they want to establish state religions.

The decision, added Laycock, “appears to repudiate the very idea of government neutrality as a constitutional norm. Government is now free to promote religion, and apparently free to promote Christianity in particular, at least in the public schools and possibly much more broadly.”