The past consequential year at the Supreme Court marked a decisive turn toward the restoration of religious liberty and, thereby, liberty in general. Mere collateral damage was the simultaneous nullification and vindication of my 2019 “casebook” on religious liberty.
I rejoice in both consequences, which follow from the Court’s June 27 decision in Kennedy v. Bremerton School District.
The Court’s opinion in the 6-3 decision was written by Justice Neil Gorsuch, President Trump’s first appointee, and relied on both the free exercise and the free speech clauses of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . .”
It may surprise some that the conduct protected by the decision should have ever been questioned. Joseph Kennedy, an assistant high school football coach, would briefly pray in private at the end of his team’s games, sometimes at the 50-yard line. Often players would join him, and sometimes even the staff and players of the opposing team would, too. In no instance did he require or urge anyone else to join him in prayer.
Nonetheless, the school district felt (or hoped) his prayers might violate the establishment clause, so they asked him to cease his prayers, which had come to public attention and drawn media coverage. His attorney replied he would not, and the district fired the coach.
The Court found the district violated both the free exercise and free speech clauses of the First Amendment. “Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion,” Gorsuch wrote. Moreover,
Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment.
District officials were in error in thinking they had a responsibility to censor Kennedy’s conduct.
Justice Sonia Sotomayor’s dissent has a radically different view of the facts of the case, with three photos of the coach surrounded by players and staff. “This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event,” she wrote. “The Constitution does not authorize, let alone require, public schools to embrace this conduct.”
Sotomayor seems scandalized by kneeling, praying, and even bowing. In her view the coach is not engaged in private conduct following the game but “at the center of a school event.” Moreover, “Kennedy ‘accept[ed] certain limitations’ on his freedom of speech when he accepted government employment.”
Not too long ago, Sotomayor’s dissent would have been the majority opinion. But the question of justice here is not merely a numerical outcome. In one 2000 decision, the Court ruled that a student-led prayer at a public school football rally would violate the constitution! One should ponder Sotomayor’s logic, which follows from the prevalent logic of the past 70 years or so. That logic dictated the school board was right and that Kennedy’s conduct was a kind of establishment of religion. How can this be, that for the Supreme Court there is no right to free exercise of religion in public?
Ever since its major blunder in Dred Scott, the Court has erred in its interpretation of the Constitution, overcorrecting or just plain misinterpreting constitutional doctrine or the Civil War amendments themselves. It has continued its folly of misrepresenting and ignoring the Declaration of Independence, the foundation of political legitimacy and republican government. Of the three branches of government, the Court has probably been the worst offender in terms of what the founders sought from their roles in republican government.
What the Court got right in its early years of interpreting the First Amendment (via the due process clause of the 14th Amendment) was observing the principle of federalism and respecting the republicanism of the states. And before that, state courts recognized the sanctity of the confessional, among other religious practices, without the slightest thought that they were establishing religion or preferring any particular church.
Everyone accepted the dependence of republican government on the transcendence of religion and of natural law. This belief certainly underlies the first major Supreme Court case on religion, Reynolds v. United States (1879), which ruled that U.S. territorial laws banning polygamy did not limit religious free exercise.
These sensible interpretations of religious liberty meant protection for religious endeavors supported by government (e.g., a Catholic order building and operating a hospital in Washington, D.C. with federal funds). But then came the expansion of 14th Amendment due process, which distorted the Court’s reasoning and its place in the constitutional order.
Two contradictory impulses characterized the Court’s religion jurisprudence in the mid-20th century: It invented a right of free exercise to override ordinary laws such as school attendance and work requirements (an individualistic turn), and it invented a notion of establishment of religion that privileged minority religions or claims of conscience over the founders’ Christian consensus (the birth of “cancel culture”). Both inventions had the effect of overriding self-government.
When it became clear that these inventions produced preposterous results, weakening religious liberty generally and inviting judicial restrictions on religious liberty, led by the American Civil Liberties Union (ACLU), the attempts to contain them worsened the difficulty. For example, protecting the Pledge of Allegiance against the ACLU’s disavowal of religion in the public square plainly required a conclusion of unconstitutionality because of the phrase “one nation, under God.” But the Court could not bring itself to do that. Instead, the justices danced around the trouble they made for themselves and then failed to admit their grotesque blunders. This is why Justice Clarence Thomas has astutely observed that the doctrine of stare decisis or reliance on precedent is a way of not thinking about a genuine issue.
Thus the complementarity of religious free exercise and prohibiting establishment of a particular religion was transformed into a tension or contradiction. Some 20th century justices, such as John Paul Stevens and David Souter, even made a government preference for religion in general, let alone a particular faith, a violation of the establishment clause. The Court was at complete odds with American political history, the venerable practice of the two elected branches of government, and, moreover, the principles of the Declaration of Independence.
The contentious and often legalistic debates over the meaning of the free exercise and establishment came about because the Court adopted the dubious history propounded by Justice Hugo Black, who contended the First Amendment, through application of the 14th Amendment’s due process clause, erected “a wall of separation between church and State.” The former Klansman’s 1947 misinterpretation of Thomas Jefferson nonetheless, through the strength of precedent, held a 70-year grip on the Court before it suffered weakening in the last few years and then major defeat in the last term.
The whole series of dubiously argued cases involving Christmas crèches or other religious displays on public property, government aid to religious schools, and religious exemptions or accommodations for workers and students was headed for the junk heap, as Black’s wall of separation collapsed despite desperate efforts to prop it up.
This growing recognition of error has led the Court to tear down the wall that had thrown blinders around it. Concrete issues are at stake. Under the then-prevailing doctrine, government subsidies for religious schools were permissible, up to a point: Constructing a school with federal funds is fine, but providing teacher salaries is not, though exception might be made for a special education instructor. The lines are murky at best. Does a cross on public land that dominates an urban landscape and serves as a war memorial offend the First Amendment? What if the cross stands in a desert on public land? What about local government support for private K-12 schools that goes predominantly to religious institutions? In the new dispensation of the last few years, these fears about differences are no longer the central constitutional focus. No one is being coerced into belief.
In particular, we see in Kennedy the unity of the religious free exercise and free speech clauses of the Constitution. Thomas had anticipated the unity of these two clauses in his concurrence in the 2018 Masterpiece Cakeshop case, which ruled in favor of a baker who refused to provide his signature work for a same-sex wedding on religious liberty grounds. It turns out that restrictions on religious expression can justify restrictions on speech generally and on other activities. We saw such distortions in the COVID restrictions on churches, which had the effect of sometimes privileging business interests that contributed to elected state officials against those that did not.
The Court’s religion cases concern more than the activities of religious people; they relate to speech in general, to Americans’ ability to express their profound sentiments and thoughts, share them with others, and act on those opinions. Ultimately, this liberty informs our ability to govern ourselves politically, as we struggle to govern ourselves individually.
