Three Hail Marys: 'Carson, Kennedy', and the fractured detente over religion and education

• Published in: Harvard law review Vol. 136; no. 1; pp. 208 - 261
• Main Author: Driver, Justin
• Format: Journal Article
• Language: English
• Published: Cambridge Harvard Law Review Association 01.11.2022
• Subjects: Actions and defenses; Church and state; Claims; Detente; Education; Federal aid to private schools; Fractured; Freedom of religion; Freedom of speech; Infringement; Laws, regulations and rules; Political aspects; Religion; Religion in the public schools; Religious aspects; School districts; Supreme courts; Turn of the century; UNITED STATES
• ISSN: 0017-811X; 2161-976X

On December 28, 1975, the Dallas Cowboys trailed the Minnesota Vikings, 14-10, on the road, in the waning seconds of a playoff game. Dallas needed a quick touchdown to save its season, but the line of scrimmage stood only at midfield - fifty long yards away from the Vikings' end zone. After dropping back to pass in the brisk Minnesota air, legendary Dallas quarterback Roger Staubach heaved the football in the general direction of a darting Drew Pearson, who somehow managed to corral the pass between his elbow and hip to secure an improbable - even miraculous - winning touchdown. "It was a play you hit one in a hundred times if you're lucky," Staubach told reporters afterward. "[I]t's a Hail Mary pass. You throw it up and pray he catches it." The Staubach-to-Pearson connection popularized the idea of a Hail Mary event - a desperate attempt that possesses an infinitesimal likelihood of success. Although the term's colloquial usage began in the sports world, its reach now extends well beyond - including into the legal realm, where judges with some frequency invoke the metaphor, often to reject a litigation long shot. Toward the end of last Term, the Supreme Court issued two momentous decisions involving religion and education: 'Carson v Makin' and 'Kennedy v Bremerton School District'.