By Dr. Robert J. Romano, St. John’s University – Rome Campus, Senior Writer
The First Amendment to the U.S. Constitution guarantees that everyone has the right to freely practice his or her own religion.[i] Notably, the Amendment comes with two separate and distinct provisions: The Establishment Clause and the Free Exercise Clause. The Establishment Clause prohibits the government from encouraging or promoting, or in other words, establishing a religion in any sense of the matter. The Free Exercise Clause gives a person the right to worship as he or she chooses, and with this comes the right not to worship. It has been argued that our nation’s founding-fathers, men who practiced a variety of religions, knew the best way to protect religious liberty was to keep the government out of it.[ii]
In the 1971 case of Lemon v. Kurtzman, the U.S. Supreme Court created the standard for determining whether a particular government act or policy unconstitutionally promoted or endorsed a particular religion. The Lemon Test, as it has come to be known, maintains the following: First, any government act or policy must do nothing to prohibit or promote a particular religion, second, it must be motivated by a secular purpose, and finally, it must avoid excessive entanglements.[iii] As numerous U.S. Courts have held that public schools are an ‘arm of the state’, they too can do nothing to either hinder or endorse a religion and, as a result, are subject to the Lemon Test to determine its policy’s constitutionality. And indeed, numerous practices such as offering prayers in classrooms and commencement exercises, displaying the Ten Commandments or other religious symbol, requiring Bible readings or distributing Bibles, observing moments of silence, and studying the controversial doctrine of Scientific Creationism, have all been struck down as unconstitutional.[iv]
However, those with strong religious convictions, usually with the help of well-organized and funded religious groups, since 1971, have continually asserted (and with that challenge legally) that their religious expression, regardless of whether government action is involved, is protected free speech and therefore constitutional. And this brings us to the latest U.S. Supreme Court case involving the conflict between the First Amendment’s Free Speech and Free Exercise clauses: Kennedy vs. Bremerton School District.[v]
By way of background, Joseph Kennedy, a football coach at Bremerton High School located in the state of Washington, beginning in 2008, prayed alone on the field following a game. After both his players and other students started to join in, he began to deliver what he referred to as a ‘short, inspirational talk with religious references’.[vi] This escalated to Coach Kennedy leading a locker room prayer before games, which after the school district became aware of in 2015, asked him to discontinue believing it was unconstitutional. Coach Kennedy stopped leading locker room prayers, but continued kneeling and praying on the field after games, disregarding the school district’s directive. Thereafter, he was not rehired as an assistant coach because, among other things, he failed to follow the school district’s policy regarding praying at school sponsored events. Coach Kennedy subsequently filed a lawsuit in federal court, alleging the district’s actions violated his free speech and free exercise rights under the First Amendment to the U.S. Constitution. Both the District Court and Appeals Court, following years of case precedent on this issue, found in favor of the school district.[vii]
But this is a new, post-Trump, conservative, precedent-be-dammed Supreme Court which, not surprisingly, ruled in a 6-3 decision that the coach’s prayers were to be considered speech afforded the protection of the Constitution. Justice Neil Gorsuch delivered the opinion for the majority and wrote “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”[viii] He went on to state that Coach Kennedy “prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters” and “while his students were otherwise occupied.”
Justice Sonia Sotomayor fired back in her dissenting opinion stating the Constitution does not authorize public schools to embrace Kennedy’s conduct and that the majority’s opinion rejects “longstanding concerns” surrounding government endorsement of religion. “Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment,” wrote Sotomayor, joined by Justices Stephen Breyer and Elena Kagan. “The court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.”[ix]
Justice Sotomayor’s concerns were echoed by Rachel Laser, president and CEO of Americans United for Separation of Church and State, who warned that this decision “represents the greatest loss of religious freedom” in generations. [x] “Today, the court continued its assault on church-state separation, by falsely describing coercive prayer as ‘personal’ and stopping public schools from protecting their students’ religious freedom,” she said in a statement. “It is no coincidence that the erosion of the line between church and state has come alongside devastating losses on so many of the rights we cherish. As that line has blurred, public education, reproductive rights, civil rights and more have come under attack.”[xi]
In the end, young athletes should not have to choose between participating in a high school football game on one hand and their faith, whatever it may be, on the other. Everyone is entitled to pray before, during, and after a game, but it should be noted that public schools serve all students, regardless of faith. Their policies and practices should bring everyone together, not divide them along religious lines. Unfortunately, Justice Gorsuch and the court’s conservative (and what some may refer to as radical) majority has failed to recognize the importance of this protection as guaranteed by the First Amendment’s Establishment Clause.
As per the matter of Less v. Weisman, Justice Kennedy eloquently articulated that “What to most believers may seem nothing more than a reasonable request that the nonbeliever respects their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.”[xii] The constitutional command will not permit the school district “to exact religious conformity from a student as the price of joining her classmates at a varsity football game.”[xiii]
[i] U.S. Const. amend I.
[ii] https://www.nbcnews.com/politics/supreme-court/narrow-ruling-supreme-court-gives-victory-baker-who-refused-make-n872946
[iii] Lemon v. Kurtzman, 403 U.S. 602 (197).
[iv] https://bjconline.org/why-is-prayer-over-a-loudspeaker-at-public-high-school-football-games-unconstitutional-102517/
[v] Kennedy v. Bremerton School Dist. 597 U.S. ___ (2022).
[vi] Id.
[vii] KennedyIII, 991 F.3d 1004, 1010. (9th Cir. 2021).
[viii] Kennedy v. Bremerton School Dist. 597 U.S. ___ (2022).
[ix] Id.
[x] https://www.cbsnews.com/live-updates/supreme-court-joe-kennedy-high-school-football-coach-school-prayer-case/
[xi] Id.
[xii] Lee v. Weisman, 505 U.S. 577 (1992).
[xiii] Id.
