Prayer on the 50-yard line: Supreme Court reshapes church-state relationship
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In what continues to be one of the most consequential Supreme Court terms in United States history, the nation鈥檚 highest court on Monday once again redefined the meaning of the First Amendment and its dual clauses about the proper place of religion in America.听
In the last of three religious freedom cases decided this term, the Supreme Court ruled 6-3 in favor of a Washington high school football coach who was fired after continuing to pray at the 50 yard line after games. The school district said the coach鈥檚 prayers violated its policies, rooted in a concern that such a high-profile, public prayer by a public employee would entangle the district with religion.听
But echoing views that have been emerging on the Supreme Court for over a decade, Monday鈥檚 ruling argued that the school district鈥檚 actions did not constitute a proper concern for the separation of church and state: They in fact discriminated against people of faith.听听
Why We Wrote This
With a decision returning prayer to public schools, the Supreme Court Monday gave another win to the free exercise clause of the Constitution. Where does that leave the wall between church and state, or the establishment clause of the First Amendment?
鈥淗ere, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech,鈥 wrote Justice Neil Gorsuch in a 6-3 decision in , Kennedy v. Bremerton School District. 鈥淭he Constitution neither mandates nor tolerates that kind of discrimination.鈥
For conservatives, the Supreme Court, now dominated by the most religion-friendly justices in nearly 75 years, experts say, this term鈥檚 three cases have continued to restore the full force of the First Amendment鈥檚 protections of the free exercise of religion, even as liberal critics contend that the establishment clause, understood to place a wall of separation between church and state, is quickly losing its meaning.
鈥淎s Justice Sotomayor observed, we鈥檝e gone even beyond the place that separation of church and state has been reduced to a slogan,鈥 says Mary Anne Case, a professor at the University of Chicago School of Law, calling the establishment clause 鈥渄ead.鈥 鈥淭hings that used to be seen as establishment clause violations now seem to be free exercise mandates. I鈥檓 not sure how the judges in the majority see the separation of church and state, at least if that church is a 海角大神 one.鈥
Flags, funding, and the playing field
There have been points of agreement, however. In May, a unanimous court agreed that the city of Boston discriminated against a conservative religious group when it refused to allow it to fly a 海角大神 flag commonly displayed by many Evangelical 海角大神s, even as it allowed the flags of a host of other groups and perspectives. Boston鈥檚 flag-raising program clearly did not express government speech, wrote Justice Stephen Breyer in the 9-0 decision. 鈥淎s a result, the city鈥檚 refusal to let (the group) fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment.鈥澨
But the unanimity in which this case was dispatched was short lived. Last week in Carson v. Makin, the sharp ideological divisions between the Supreme Court鈥檚 six conservatives and three liberals were once again on full display in a decision that required Maine to听include religious schools in a taxpayer-funded tuition assistance program. 鈥淢aine鈥檚 decision to continue excluding religious schools from its tuition assistance program ... promotes stricter separation of church and state than the Federal Constitution requires,鈥 wrote Chief Justice John Roberts in a 6-3 decision.听
In her dissent in Monday鈥檚 Kennedy case, Justice Sonia Sotomayor returned to observations she鈥檚 made in similar cases. The Supreme Court 鈥渉as consistently recognized that school officials leading prayer is constitutionally impermissible,鈥 she wrote in a dissent joined by Justices Breyer and Elena Kagan. Monday鈥檚 ruling 鈥渃harts a different path, yet again paying almost exclusive attention to the free exercise clause鈥檚 protection for individual religious exercise while giving short shrift to the establishment clause鈥檚 prohibition on state establishment of religion.鈥
Free exercise and the Roberts court
When compared to previous eras in the Supreme Court鈥檚 history, the Roberts court stands out for its emphasis on the free exercise of religion and its general skepticism of efforts to maintain a wall of separation between church and state, according to by the legal scholars Lee Epstein and Eric Posner.听
During the era of Chief Justice Earl Warren in the 1950s and 1960s, for example, they found the nation鈥檚 highest court issued pro-religion decisions 46% of the time in relevant First Amendment cases. The court headed by Justice Warren Burger through 1986 issued pro-free exercise decisions in 51% of its cases, and the court of Justice William Rehnquist favored religion 58% of the time.
Since 2005, however, the Roberts court has issued pro-free exercise decisions in nearly 87% of the cases it鈥檚 heard. And at the same time, it has redefined the court鈥檚 precedents concerning the establishment clause and the separation of church and state.
For many conservative scholars, the Roberts court is aiming to restore the principle of government neutrality toward religion, correcting what it continues to perceive as discrimination against religion.
鈥淚 would say this general trend towards neutrality is the touchstone, the core principle of the First Amendment鈥檚 religion clauses, and it predates by many years ... the Roberts court,鈥 says Nicole Stelle Garnett, professor at Notre Dame Law School and former clerk to Justice Clarence Thomas.
鈥淪o in a sense, the court does appear to be taking more cases to apply this principle than previous courts,鈥 she says. 鈥淏ut I don鈥檛 see that it鈥檚 more pro-religion than previous courts. I think that trend toward demanding government neutrality towards religion began in earnest in the Rehnquist court.鈥
But for many liberal scholars, this emphasis on the free exercise clause has in fact been far from neutral. Like all three cases this term听and most of the cases during the Roberts era,听the court鈥檚 decisions have focused nearly exclusively on a specific religious point of view.
鈥淭he Burger Court got free exercise claims mostly from a variety of religions that nobody had really heard of until they went to court,鈥 says Mark Graber, professor of law at the University of Maryland鈥檚 Carey School of Law in Baltimore. Other decisions before the Roberts era, too, included听鈥淣ative Americans who used peyote, Seventh Day Adventists who didn鈥檛 want to work on Saturday, the Amish 鈥 not religions that could be said to exercise any political power.鈥
鈥淲hat is winning with the Roberts court, especially this term, are white Evangelicals, who are crucial members of the Republican coalition,鈥 he says. 鈥満=谴笊 Republicans in Maine just got their religious schools paid for. But again, in how many of these cases has this court protected the freedom of religion for a group that isn鈥檛 associated with the Republican Party?鈥
In Monday鈥檚 decision, the court鈥檚 conservative majority also dismantled a traditional test that has served as an analytical framework for establishment clause cases. The so-called 鈥淟emon test,鈥 which since 1971 has been used to determine whether the government is violating the establishment clause, held that government conduct must have a secular purpose, must not advance or inhibit religion, and should not foster an excessive government entanglement with religion.
Justice Breyer relied in part on the Lemon test in the 9-0 decision that declared Boston鈥檚 flag program a violation of the free-speech rights of the Evangelical group that wanted to fly a 海角大神 flag in front of City Hall. But that 鈥渆ndorsement鈥-based test is now gone, the Supreme Court said today 鈥 and, the majority claimed, it has been gone for some time.
鈥淭his court long ago abandoned Lemon and its endorsement-test offshoot,鈥 Justice Gorsuch wrote, citing opinions dating as recently as 2019 back to roughly 1990. Despite that assertion, the Supreme Court had never formally overturned the Lemon test, including in that recent 2019 decision, which determined that a 40-foot cross could be considered a secular symbol.
In its ruling on Monday in Kennedy, the court explains that the Lemon test is being replaced 鈥 and it鈥檚 being replaced with what is becoming a popular focus for this Supreme Court: history.
Now the establishment clause 鈥渕ust be interpreted by 鈥榬eference to historical practices and understandings,鈥欌 wrote Justice Gorsuch.
鈥淭he court says it鈥檚 not adopting a new test, but rather making clear that history and tradition ought to be the guideposts for determining what the Establishment Clause prohibits,鈥 says Professor Garnett, in an email. 鈥淚 think it鈥檚 fair to say that the application of this 鈥榟istory and tradition鈥 / 鈥榗oercion鈥 test in public schools is something new, and I predict that it will take time for courts to figure out how [it] works.鈥
This historical test will allow governments a lot more leeway to allow religious exercise when it comes to establishment clause issues, says Ken Paulson, of the Free Speech Center at Middle Tennessee State University.
鈥淲here the court once tried to assess whether there is excessive entanglement in religion, now it seems to be whether there is an actual endorsement of religion,鈥 he says. 鈥淭hat鈥檚 an important distinction, and it鈥檚 a far more conservative point of view. You certainly could have excessive entanglement without those who are sponsoring legislation or allowing practices believing that it somehow endorsed a religion.鈥
鈥淭his distinction goes to the intent of government officials, when in fact it probably should go to the actual impact,鈥 Dr. Paulson says.
For critics, the Roberts court has again and again expressed concern about government discrimination against a person鈥檚 鈥渞eligious status,鈥 but little concern about the 鈥渞eligious use鈥 of the taxpayer dollars that must now be given to religious schools, like those in Maine, that exclude LGBTQ employees and students from their ranks.
In her dissent in Kennedy, Justice Sotomayor said the majority decision ignored the impact of religious coercion when a highly visible public employee led his team in prayer in front of a crowd of people.听
鈥淭he play in the joints鈥
And in his dissenting opinion in Carson, Justice Breyer said the conservative majority was paying almost no attention to the establishment clause while giving almost exclusive attention to the free exercise clause, adding that it also 鈥渇ails to recognize the 鈥榩lay in the joints鈥 between the two Clauses.鈥
The expression, which first emerged in a Supreme Court opinion by Chief Justice Burger听and was later echoed by Chief Justice Rehnquist, gave states听some room to address establishment concerns, even when it involved curtailing certain religious expressions. But this 鈥減lay in the joints鈥 has become more and more rigid, and more protective of religion than a separation of church and state, critics of the Roberts court say.听
鈥淭here鈥檚 no play in the joints left. They鈥檙e mandating what used to be seen as problematic,鈥 says Professor Case. 鈥淎nd when I say 鈥榰sed to,鈥 I don鈥檛 mean just in the last 50-100 years of jurisprudence 鈥 I鈥檓 talking about the Framers.鈥
Five years ago, in Trinity Lutheran v. Comer, the court ruled that Missouri could not exclude a church daycare from a public grant program for nonprofits. And two years ago, in Espinoza v. Montana, the court said that private religious schools could not be excluded from a Montana tax credit program simply because they were religious. Chief Justice Roberts called these 鈥溾榰nremarkable鈥 principles that justified his majority opinion in Carson.听
In her dissent, however, Justice Sotomayor wrote that 鈥淸the] court for many decades understood the establishment clause to prohibit government from funding religious exercise.鈥 The ruling in Trinity Lutheran, 鈥渧eered sharply away from that understanding,鈥 she added. And with its ruling in Carson, 鈥渢he court leads us to a place where the separation of church and state becomes a constitutional violation.鈥
Justice Breyer echoed those concerns, worrying that when the religion clauses are interpreted too rigidly, as if separated by clear, bright lines, this could have severe consequences. When the government promotes religion in its public school system, he wrote, there is 鈥渋ncreased risk of religiously based social conflict.鈥
鈥淲e are today a nation with well over 100 different religious groups,鈥 he wrote. 鈥淎nd with greater religious diversity comes greater risk of religiously based strife, conflict, and social division.鈥
What prayers are welcome on the 50-yard line?
Leaders of other faith traditions echoed that concern Monday.
鈥淎lthough we strongly believe that public school employees have the right to pray and visibly practice their faith in many circumstances,听we are concerned that schools will not extend this right equally to employees of all faiths and that some students may feel coerced to participate in certain acts of worship,鈥 said Edward Ahmed Mitchell, deputy director of the Council on American-Islamic Relations.
Mr. Mitchell said that today鈥檚 ruling would mean that,听for example, a Muslim coach observing Ramadan would have the right to pray on the field after breaking their fast.
鈥淧ublic schools implementing this ruling must ensure that all employees, including followers of minority faiths, receive equal treatment for similar acts of devotion and that their religious observances do not directly or indirectly coerce students to participate.鈥