Guest post by
Marty France, PhD
Brigadier General, USAF (Retired)
MRFF Advisory Board Member
Kennedy v Bremerton School District comes before the Supreme Court of the United States today. The ultimate decision in this case—likely to be revealed months from now—will have long reach and impact for all Americans because it will directly address the balance between the concepts of Freedom of Expression and Religious Practice versus the Establishment Clause in the First Amendment that prohibits government entities from endorsing or showing preference for a specific religious perspective.
As a veteran who wore an Air Force uniform for over 41 years, this case is incredibly important to me because I dealt with this balance on an almost daily basis over those four-plus decades. It impacted my career and choices as well as our family’s life. I faced these challenges as a subordinate from the lowest level through dealing with military peers and friends to supervising professionals whose beliefs spanned the spectrum from Young Earth Creationism through Muslim, Jewish, and Buddhist to avowed Atheist.
Through all of this, I came to appreciate the protections of the Establishment Clause, largely because I never considered myself part of the practicing mainstream Protestant majority that made up most of the military personnel with whom I served. I experienced why religion in the government/military workplace can have a corrosive impact on the morale, good order, teamwork, and discipline that is critical to the proper function of any organization—but absolutely essential within an institution that can and does make life and death decisions.
When you are young, new to a group, and that group has any sort of formal or informal hierarchy, you find yourself eager to learn more about that organization, how it functions, what it values, how you can contribute to its success, and how you can succeed within its structure. Sometimes, one in a leadership position may ask you questions like: “What’s your religion?”; “Would you like to join me in prayer?”; “Have you accepted Jesus as your lord and savior?” They may invite you into their office where, precisely placed on their desk, facing you as you sit opposite them, you see a Bible—open to a particular passage, sometimes even highlighted. Your “leader” may have a framed religious document or even a meme that says something like “My Priorities in Order: God, Country, Family.” The boss may start meetings with a prayer, or their spouse might contact your spouse, ask similar questions, or invite your significant other to voluntary, religiously-themed “spouse and child” events. I might be told to “remain standing following the national anthem while Major Smith delivers the (distinctly Christian) invocation.” When these things happen, it’s logical and rational for you to conclude that religion—and usually, a very particular flavor of religion—will be an important part of “fitting in” and that you may be judged as much or more on your religious affiliation and how that meshes with the beliefs of those in power as your actual job performance.
I faced all of these situations and more in my career. Sometimes, I answered honestly and directly. Sometimes I obfuscated with comments like, “I’d prefer not to talk about that in the office.” My spouse would say that they were “busy that day, but would think about it in the future.” Early on, I just fudged and said, “Christian,” because I knew that would probably end the conversation, once the interrogator was satisfied that I was “one of us.” Sometimes, I marched along (literally) and went to the (supposedly) optional, but functionally mandatory, church services, realizing that I didn’t have the strength to step out of line and bring attention to myself (you see, they’d marched us to the first step of the chapel). I’d rather just sleep in the back row and not makes waves.
In every one of these cases, it was made clear to me who fit in and who didn’t. I saw hiring, assigned duty, and promotion decisions made by the religious to favor the religious—if they shared the same religion. Unfortunately, if there was any doubt about a particular leader, it forced me to inquire about the “religious environment” in the workplace before seeking a position in that organization, not wanting to step into a place where I might not be treated fairly.
The military institution with which I had the most experience was the US Air Force Academy (USAFA). I graduated from there, as did my brother and one son. I taught there as a junior, mid-level, and senior officer for more than 17 years. It is an institution in which I still take great pride despite its many flaws—I live less than two miles from its southern fence. I was married in the Cadet Chapel by a Lieutenant Colonel Lutheran chaplain more than 40 years ago.
It's no exaggeration to say that USAFA has struggled with religious issues over its nearly 70 years—from the first 18 that included mandatory church services (ruled unconstitutional by the US Court of Appeals for the District of Columbia on 1 July 1972) through surveys in the early-2000s that showed widespread Christian bias among the Cadet Wing (student body), faculty, and staff, to current sporadic but persistent reports that are received by the Military Religious Freedom Foundation (MRFF) of which I am an Advisory Board member and one of its earliest supporters.
USAFA’s sight line is dominated by its iconic chapel—one of the most recognizable architectural works in modern America. It is located in one of the most religious, conservative, and military-based metropolitan areas in America. In many ways, USAFA is ground-zero for the Expression/Establishment battle and why this retired Brigadier General cares so much about the outcome of Monday’s arguments.
During the 13 years in which I served as a USAFA academic department head (2005-2018), I would begin every semester with a meeting of my faculty and staff in which I would say something like, “Our job is to produce the best Air Force officers possible. To that end, we must model the stated values of our Air Force and the strict separation set forth in the Constitution between our military and any political or religious partisanship. At the end of the semester, the cadets in your class should have no more idea for whom you would (or did) vote than what you do behind the closed doors of your private residence, or how you choose to spend your Sunday (or Friday or Saturday or any) morning off-duty.” For 13 years, we did not have a single reported problem with that policy, as far as I know.
Other departments and units were not so lucky. Some faculty from other departments came to me concerned about their leadership’s weekly Bible Study held before classes or in the department conference room over lunch. They didn’t want to participate, but felt like that had to do so to “fit in.” My students reported the same sort of thing in their squadron (dormitory) areas led by their military leaders. Reports came to the MRFF from cadets whose faculty either exhorted them to pray “to the Lord Jesus” for help with the classwork or, during individual tutoring sessions, they were asked about their religious affiliation. Taking cues from senior officers (some retired and in the local area), higher ranking cadets recruited (i.e., groomed) younger cadets by inviting them to off-base Bible studies and services—essentially granting them more freedom and privileges away from the strict regimentation of freshman year life at a service academy. When some complaints of this type of activity surfaced a decade ago, the Dean of the Faculty (and Air Force one-star), asked the head of another academic department to conduct a COIN (counterinsurgency) investigation to uncover who on the faculty may be a contributor or source for MRFF complaints of religious bias on the faculty that had gone public.
Religion can improperly invade all aspects of USAFA cadet life. In a celebrated case from the early-2000s, legendary football coach Fisher DeBerry hung signs in the the team's locker room that proclaimed “We Are First and Last Christians” and “We Are All Members of Team Jesus Christ.” During the same period, the Commandant of Cadets (a one-star general responsible for all military discipline and training) told a large group of Christian cadets during an off-base weekend getaway that he would flash a “J” sign for Jesus and they would know that this was his code to the faithful—and then asked that they all respond with “Rock, Sir!” to demonstrate the strength of their faith. One instructor told his engineering students that they didn’t need to study more, but just to realize that the key equation he’d written on the board was the truth: “3 Nails + 1 Cross = 4 Given.”
These and many other violations of the Constitution’s Establishment Clause led, ultimately, to the publishing of Air Force Regulation 1-1 in 2012 that defines the guardrails for professional behavior within the Department of the Air Force. The key paragraph here is 2.12 (emphasis added) which states:
2.12. Balance of Free Exercise of Religion and Establishment Clause. Leaders at all levels must balance constitutional protections for their own free exercise of religion, including individual expressions of religious beliefs, and the constitutional prohibition against governmental establishment of religion. They must ensure their words and actions cannot reasonably be construed to be officially endorsing or disapproving of, or extending preferential treatment for any faith, belief, or absence of belief.
Bremerton School District is not the US Air Force Academy. But, the Bremerton School District is a government institution, subject to the Constitutional guarantees and constraints that govern the rest of the government and have led to such landmark decisions as Brown v Board of Education and, most important for this case, Engel v Vitale, which almost 60 years ago, in a 6-1 decision, ended the practice of mandatory prayer in public schools. Writing for the majority, Justice William O. Douglas wrote that “once government finances a religious exercise it inserts a divisive influence into our communities.”
Coach Kennedy may not have been a Brigadier General or the District’s Superintendent when he walked to the 50-yard line of the field following each Friday night football to pray. But, he was a paid employee of the Bremerton School District. Moreover, as an assistant coach, he had leadership responsibilities and some power over the student-athletes on his team.
Coach Kennedy has the absolute right to pray. He probably also had the right to do so somewhere on the field. Clearly, no one could stop him if he wanted to pray privately and silently while standing or sitting at any point before, during, or after the game—so long as that didn’t distract him from his primary duties as a coach.
But, when he decided to make a public spectacle of the act—walking to the 50-yard-line, taking a knee—he crossed the line. That other players and coaches ultimately joined him in doing so, setting a publicly evident precedent compounded the issue. Ultimately, almost all the team would join him on the field. Did all necessarily believe as he did? Probably not. Did many feel that, since this appeared to be a team action, they wanted to be part of the team, supportive of their teammates? Probably. Did this pressure to participate with the paid employee of a taxpayer-supported government institution cause some to feel uncomfortable and rightly worry that, if they did not participate with the others, they might face some level of bias or retribution? Absolutely—I can say this is true from personal, similar experience. Did allowing the public spectacle of a team prayer at the middle of the field following every game give the strong impression that Christianity was the de facto and endorsed religious perspective for Coach Kennedy’s team and school? I think a reasonable person would conclude in the affirmative.
Some have stated that Coach Kennedy’s prayer is akin to Black Lives Matter protestors taking a knee during the playing of the national anthem. On the contrary, the first is quiet attention by an individual to a problem of which the solution is ingrained in the Constitution, while the other excludes non-participants in a very subjective and spectacular way. I would argue teachers and coaches are students’ and athletes’ first encounter with the government, and as such the Establishment Clause should have no greater defenders. The distinction of one person taking a knee for social justice versus endorsing and encouraging participation in a religious practice populated by the “in crowd” is vast. I think that there is a saying attributed to Jesus that goes something like “it’s best to lock yourself in your room and pray in private so you don’t look like a Pharisee.” I don’t think that calling someone a Pharisee is a compliment—but as a non-Christian, I’m not totally sure.
No one wants to be on the wrong side of a coach responsible for “play or sit” decisions on a team. In that vein, the publicly paid coach should not even be allowed to hold separate prayer meetings with “volunteers” from the team because of the appearance and propensity for bias—and the exclusion of those who don’t believe similarly. In the same manner, the USAFA Commandant of Cadets should not attend Air Force Chaplain sponsored events for cadets as a guest speaker because he would be sending the exact same religious message: “If you’re praying with me, you’re like me. I like people like me. You’ll go farther if you’re more like me.” Rock! Sir!
The Bremerton School District, in terminating Coach Kennedy’s contract (with pay, I might add), was not restricting his right to prayer. They were terminating his power to coerce those under him to believe and pray as he did—a clear violation of the Establishment Clause because of his position. Had they allowed this to continue, they would have been guilty of violating the same Establishment Clause as well, endorsing one religious practice over others or none.
I care deeply about Kennedy v Bremerton because I can see where a defeat for our Constitution would lead. In the educational environment of a service academy, a professor would have the right to ask their students to begin (or end) each class in a prayer led by the professor. Cadets could opt out by arriving late or leaving early, but then the professor would be able to identify who “is” and “isn’t.” The same could happen in public schools and universities. Military units and their leaders could do the same at meetings, before exercises, and operations (spoiler alert: this is all too common anyway). The same could happen at school board and county commissioner meetings, alienating those who don’t believe as the majority. I could go on, and on, and on.
When I was an 18-year-old forced to walk up the steps of the USAFA Cadet Chapel to “participate” in Protestant services (the largest group, in the largest chamber, so the most anonymity), I blindly went along, largely ignorant of the Establishment Clause and fearful of garnering any personal attention. Forty-five years later, I see the Establishment Clause under an assault unlike anything it’s faced in sixty years and I’m terrified. I think that it’s very likely that the 6-3 Conservative Majority eviscerates our Constitution, effectively establishing a state religion for many citizens. The irony here is that this would enable and expand the kind of government indoctrination that causes so much angst among conservatives in many other, non-religious areas. Their freedom to exercise would, once again, trump everyone else’s freedom from established religious doctrine. The vocal minority would leverage their political power to overrule a foundational element of our Constitution and vital protection for all others.