One on 1 with Ira Lupu
” … No One Should Be Coerced Into Praying.”
Join our One on 1 conversation with Ira Lupu, a lawyer and professor at George Washington University. Lupu discusses the ideas behind his recent article, “Kennedy V. Bremerton School District – A Sledgehammer to the Bedrock of Nonestablishment,” published on June 28, 2022.
IRA LUPU: No one should be coerced into praying
MAX NOSBISCH: Hello, thank you for joining us for this episode of The First Amendment Museum’s One on 1 interview series. The First Amendment Museum is a nonpartisan nonprofit located in Augusta, Maine. My name is Max Nosbisch, the manager of visitor experiences here, and today I’m joined by Professor Ira Lupu, the accomplished lawyer author and professor. A graduate of Cornell and Harvard, professor Lupu practice law in Boston before becoming a professor at schools such as Boston University, Northeastern UC Berkeley, and now George Washington University. A First Amendment expert, he is the co-author of secular government, religious people. Proffesor Lupu, thank you for joining us.
IRA LUPU: Happy to be here. Thanks for the invitation.
MAX NOSBISCH: So you recently co-wrote an article featured in the American Constitution Society’s website and on the George Washington law review and titled Kennedy V. Robertson school district a sledgehammer to the bedrock of non-establishment. Can you tell us what non-establishment means?
IRA LUPU: The only way to start explaining non-establishment is to talk about establishment right non-establishment was the rejection or the repudiation of a particular institution, an established church is one that’s recognized by law as the Church of the state as the government’s own church. So in England, the Anglican church is the church established by law. In Russia, the Russian Orthodox Church has a kind of unit unity with the state. It’s the state’s own church. What we decided in America back as early as that drafting of the First Amendment was that there was going to be no church of the United States and eventually no church of any state either. So we made a commitment to non-establishment and non-establishment means at a minimum, that there is no official state church. But over time, it is coming to me in something more subtle and complicated and equally important, which is that the state is secular, the state does not have a religious identity. The state itself is not a church or an object of worship. So the state is secular, even though many people are religious, and the state can respond appropriately to religious people, hence the title of our book, secular government, religious people.
MAX NOSBISCH: Could you summarize Kennedy V. Bremerton School District and tell us what the Supreme Court ruled?
IRA LUPU: Over the last sixty years, beginning in the early 1960s, the Supreme Court, in a series of decisions, had ruled that public schools may not sponsor worship or religious exercises, Bible reading prayer, etcetera. Six different decisions spanning 60 years. Morning Prayer, football game prayer, graduation prayer–public schools may not sponsor prayer exercises. What Kennedy versus Bremerton School District is about is a football coach and a public high school who had begun praying with his team in the locker room before the game’s halftime, after the games on the field. The school district, his employer discovered that, they told him to cut it out. They said Coach Kennedy, we are a public school. We cannot sponsor prayer exercises for students or players on the football team. You have to stop doing that. And rather than just ending his practice, he drew attention to it. He went on Facebook. He went to media newspapers. And then for the next few weeks, he went to midfield right after the game, the 50-yard line immediately after the game, and said a prayer, and sometimes people joined in players opposing players people in the stands. It caused a big stir caused a lot of attention. And the school district then suspended him and did not renew him for the next year because he had defied their instructions not to pray in connection with his job.
He then brought a lawsuit and said Listen, I have a right under the Free Exercise Clause of the First Amendment and the free speech Clause of the First Amendment. So he was invoking two parts of the First Amendment and said I have a right to engage in this prayer. It’s personal, and it’s private. Now, to my disappointment, the Supreme Court upheld his claim. The Supreme Court said yes, Coach Kennedy’s prayer because he walked away from his team. And when said at mid field, his prayer was for himself. Whether or not other people chose to join him. His prayer was personal and private, and therefore it was protected by the Free Exercise Clause.
MAX NOSBISCH: Why do you argue that Kennedy V Bremerton School District is a sledgehammer to the bedrock of non-establishment?
IRA LUPU: Over the past 20 years or so, the Supreme Court had been cutting back on non-establishment concerns. It started with cases about the funding of religious schools and other religious enterprises used to be strict constitutional limits on finite state financing or religious enterprises, and that’s been cut back. The Supreme Court has cut back on the concern about the state endorsing or supporting a religious sentiment or religious idea, for example, posting the 10 commandments in a courthouse. The court has been cutting back on those kinds of cases, but I had thought before Kennedy vs Bremerton School District that the school prayer cases were the remaining bedrock of non-establishment. That’s why I use that phrase. There have been six such decisions. They had not been seriously questioned. Everybody who administered a public school in the United States understood there were constitutional limitations on school-sponsored prayer. Students can pray students can negotiate for him. They are not agents of the school. The school cannot sponsor it. And teachers and coaches on the job are agents of the school. So I would have thought if you’re on the job, you’re a teacher, you’re a coach, if you sponsor a prayer if you engage in a prayer that essentially invites others to join by just by a model, that that would not be permitted.
Instead, the Supreme Court emphasizes coach Kennedy’s free exercise rights, and it does not even cite those six school prayer cases. It treated the case, this case, as if those decisions didn’t exist. It ignored those decisions. And it also went out of its way to cast doubt on other non-establishment decisions. So by the time someone like me, who specializes in this field, finished reading Kennedy versus Bremerton School District, I thought, wow, they have just done a lot of damage to the existing law non-establishment, including parts of it that I thought were not beyond question. But very solid.
MAX NOSBISCH: How do you think the ruling Kennedy versus Bremerton School District will impact ordinary Americans? I guess, why should everyday people care about this ruling?
IRA LUPU: Well, if you’d like prayer in schools, led by teachers or coaches, you might say, “hurray, hurray, now my children can, can have a prayer experience in schools,” and there are some people who feel that way. There are, of course, many people who feel otherwise. The school prayer cases protected religious minorities who may not want to pray in the way that the majority in the community pray and protected atheists who didn’t want to pray at all. It protected even those people whose prayer was being advanced by the school because to them prayer was something for Family Church, synagogue, and mosque, not for this public setting and a school for children are thrown together by compulsion by compulsory education laws. So what I think is going to happen going forward–Well, it’s going to be different in two different kinds of school districts. So indulge me. I’m gonna like talk about two different kinds of school districts. There are going to be some school districts, in some parts of the country, that are very happy about this, and the parents are going to hear about it and say, “Gee, can our coaches and teachers pray now?” and the principal of the school will say, “Well, I can’t tell them to pray. I can’t assist them. But I can send out a memo. I can say there’s this new decision. In the Supreme Court, that teachers and coaches can can engage in private and personal prayer on school time.” And then they are going to do as they choose, okay, and not every teacher or coach will pick up the invitation, but there will be teachers and coaches who will pray before practices and games have a team who will pray right before the bell rings in the classroom. Students are coming in or they’re just sat down, not when class was begun. So I think the problem of prayer in schools which I thought we had ended 60 years ago, I think is really going to come back with a vengeance in schools like that. They’re going to be other schools, where the administration is going to be more concerned about this. More concerned about the impact on people who don’t want to pray or the children don’t want their children to pray. And they’re going to send out a different, different memo. They’re going to say, well, Coach Kennedy won his case. But he was at the 50 yard line. He created some distance between his players and his prayer. So you, teachers and coaches in our school, you have to keep distance if you want to pray, make sure you’re away from your students. Make sure you’re not inviting them by example, to pray and do those schools. There are going to be some teachers and coaches who are defiant. The way Coach Kennedy was defined and if the school administrator tries to discipline them, he or she is going to invite a lawsuit, just like this lawsuit. And there are going to be many lawyers out there ready to represent the next Coach Kennedy. And they will have every reason to think that when the next case gets to the Supreme Court, they will win and that the right of teachers and coaches to prey on the job is only going to get expanded not contracted. I do not think that coach Kennedy’s case is the boundary or the limit. I think we don’t know what the limit is yet. And I think the court hence that the only limit is not where the prayer is or when the prayer is said no one should be coerced into praying no one should be coerced.
But in this case, they said Well, no, there was no evidence that anyone was coerced. And I think their definition of coercion is going to be very narrow. I don’t think they’re going to treat peer pressure to pray as coercion, social pressure to pray. I think they’re going to say you’re coerced into praying. If you can’t opt out, or if you get punished for refusing to pray.
MAX NOSBISCH: What does this really tell us about the nature and composition of the Supreme Court in 2022?
IRA LUPU: This is a court that increasingly is highly sympathetic to claims that religion is being discriminated against in some way, and in particular, claims by Christians that they are being discriminated against in some way. Maybe the case is about the funding of schools and people are claiming that they’re being discriminated against when sectarian schools can’t get the money like other schools. This is just one more example of a coach who was, who was a Christian who wanted to make didn’t make a Christian prayer. And instead of the court saying, Oh, yes, the school system stopped him because he was on duty. He was, he was a coach, and he shouldn’t be praying in the public school. We should pray on his own time elsewhere. He said, Oh, no, he’s being singled out for discrimination because he wanted to pray. So there are a group of justices, Justice Alito was probably sort of the leader who seemed to have this generalized sense of grievance that Christians are being discriminated against. They have an agenda to fix that discrimination. This was just one more example of it.
MAX NOSBISCH: Thank you so much for joining us, Professor Lupu. Appreciate your time and contributing your thoughts.
IRA LUPU: Thanks for the questions. Thanks for the opportunity to speak