Religion and Secularism in Schools Revisited in Two Supreme Court Cases

The Supreme Court will decide two cases this month that could revise the law governing religion and schools. These cases raise both constitutional issues and the broader question of how Jews should navigate between the Scylla of secularism and the Charybdis of Christianity. Should we continue to focus on preventing Christianity from dominating public spaces—or on enabling Judaism to thrive in private ones?

One case, Kennedy, concerns a public school coach who violated a school order by praying at the 50-yardline during mandatory postgame team meetings, rather than before or after them (or elsewhere). He challenged this restriction on when and where he could pray.

The Carson case, on the other hand, concerns Maine’s program that funds private school tuition for families in rural areas that lack a public school. Because Maine excludes religious schools from the program, parents who wished to enroll their daughter in a religious school challenged the exclusion.

Though many expect most justices to vote the same way, either favoring both the coach’s and parents’ religious claims, or both school restrictions, the constitutional imperative is not to ensure there is more religious practice, or less, but that religious decisions follow private choice and not governmental pressure. Under this standard, the parents should prevail but the coach should not.

Two similar cases produced a split outcome in 2000. Centrist Justices Kennedy, O’Connor, and Breyer joined liberal Justices Stevens, Ginsburg, and Souter to strike down football game prayer in the Santa Fe case, and with conservative Justices Rehnquist, Scalia, and Thomas to uphold equal distribution of aid to all students, whether “religious, irreligious, or areligious,” in Mitchell v. Helms.

The 2000 Cases

In Santa Fe, students voted to authorize a student to lead a voluntary prayer, but Texas’ demographics guaranteed the student would not be Jewish, or Muslim, as the “majoritarian process . . . guarantees . . . minority candidates will never prevail.” The Court forbade the prayer because it implemented the favoritism that the Constitution’s Establishment Clause was designed to prevent, where the majority preferentially favors its activities and institutions over minorities’.

No favoritism or pressure appeared in Mitchell v. Helms, where the government provided computers and other resources to everyone. Schools received the same funding (per student), so parents had no incentive to choose any particular school. It was not a single majoritarian vote that determined how much each school would receive but thousands of families’ independent enrollment choices.

Preventing Pressure

This year’s cases warrant a similar split. State employees may practice their religion, but the coach refused to pray on the sideline, or at the 50-yard line after the team’s required meeting. He insisted on praying before not just a Divine audience but a (captive) human one: dozens of teenaged players desperate to win his favor. Though the coach insisted he would not reward students for participating nor penalize them for declining, at least one atheist participated because he feared otherwise he would lose playing time. Justice Kavanaugh recognized during argument that when a coach says there will be an “optional” practice tomorrow, it isn’t really optional.

The pressure in Maine, however, pushes against religion. Parents receive about $11,000 per student—if they attend a non-religious school. From kindergarten through twelfth grade, a family with three children forfeits nearly a half-million dollars by choosing religious education. This resembles the very favoritism the Constitution opposes: a majority (albeit secular) funding its own schools and denying others.

This unconstitutionally penalizes religious exercise. To be sure, the Court ruled in 2004 that states may prioritize secular over religious curricula, and thus give scholarships to study engineering but not theology. But all schools in Maine’s program must follow a prescribed secular curriculum; religion would be a supplement, not a substitute.

Analogously, if a state offered clothing to needy families, it could constitutionally decline to provide hijabs and tallitot. But it could not penalize religious families by denying them shirts, pants, and shoes just because they also wore religious garments. Likewise, the state may not deny funding to families because their school teaches reading, writing, arithmetic, and Bible.

Scylla or Charybdis

If rulings for the parents and against the coach would help protect private choice from public pressure, which case is more important? Both involve pressure to conform, but is it worse when it promotes Christianity, or when it impedes Judaism? Should we prioritize excluding religion from public schools, or providing it in private ones?

I first perceived this tension as an undergraduate. When Hillel planned to build a sukkah, it faced objections—from Jewish students. If we built a sukkah, they contended, we could not object to campus Christmas trees. Their priority was not enabling Jewish practice but preventing Christian expression.

Some assert the Jewish community should still pursue the religion-free, “neutral” public realm that Richard John Neuhaus described in his book, “The Naked Public Square.” For example, Professor Noah Feldman opposes including religious schools in funding programs, even if fewer families can access Jewish schooling, because inclusion could “end up cross-subsidizing Christian teaching with which Jews might not agree.” But Jews (and others) disagree with much that is taught now in public schools. Anti-Jewish harassment today comes less from Christian theology than from political accusations of Israeli “genocide”—promoted by California’s mandatory Ethnic Studies Curriculum.

Even the public school calendar lacks neutrality. Because interscholastic games occur on Saturdays but not Sundays, Christians can play on Saturday and go to church on their Sabbath. But Jews must choose between extracurricular participation and Shabbat—unless they attend a Jewish school, which allows them to receive scheduling accommodations.

There are risks to religious minorities where religion has too much influence, but also where it has too little. Feldman speculates our social standing will diminish if the “state funds the teaching that nonbelievers are going to hell,” as if that is why non-Jews choose religious education. In any event, hostility to religion also diminishes us. The EU’s highest court recently affirmed national bans on kosher (and halal) slaughter, and many wish to outlaw circumcision. Such coercive prohibitions of core Jewish practices tangibly harm our community more than pessimism about our afterlife prospects. And American Jews will find it harder to get time off for religious holidays when the culture ceases to value them.

Public and Private Spaces

The maxim of nineteenth-century maskil Y.L. Gordon, “Be a Jew at home and a man in the street,” summarizes the imperatives. Students should be able to participate in public education without regard to their religious identity; they should not face pressure to engage in religious practice, or feel like outsiders when they decline. But they also should have the opportunity to pursue their own religion in private settings without crushing financial disincentives.

Both goals matter. Throughout American history, when Jews in public were vulnerable but their homes were strong, the community focused more on secularizing the public sphere than on maintaining the private one. Our opposition to external discrimination succeeded; a century after Louis Brandeis’ nomination as the first Jewish justice generated antisemitic opposition, one-third of the Court was Jewish.

As in the Song of Songs (1:6), however, we have neglected our own “vineyard.” Fewer Jews now know an aleph from a bet, let alone the wisdom of the Talmud, partly because a non-neutral monopoly, not constitutionally required, exhausts our resources. It might be time for a course correction.

Mitchell Keiter is a certified appellate law specialist who has filed about 30 briefs in cases before the California and United States Supreme Court, including Carson.