The Supreme Court on Monday reopens two long-running controversies, core constitutional disputes that always divide the Court – and, in fact, divide the entire nation. The first case being heard is about prayer at public schools, with the prospect that some of the Court’s longest-standing precedents on that issue are at risk of being overturned. That case also reaches the Court at a time when public schools are under new challenge because of parents’ demands for a larger – and sometimes radical – role for themselves in shaping school policy.
(NOTE: Because the discussion here of the prayer case is lengthy, it is being posted two days ahead of the hearing rather than the usual one. Tomorrow, a separate post will appear in this space. The second hearing on Monday will focus on another deeply divisive topic: the methods used to execute criminals on Death Row. That case could lead to those inmates losing the chance to challenge the method that they fear would cause excruciating pain as they are put to death.)
The audio of hearings (no video) will be broadcast “live” on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and C-Span Now App.
First hearing Monday: Kennedy v. Bremerton School District. The hearing, scheduled for one hour, begins at 10 a.m.
Background: In the 1940s, the Supreme Court began the process – continuing today – of requiring the states and local governments to obey the Religion Clauses contained in the Constitution’s First Amendment.
While that Amendment, like all ten parts of the Bill of Rights, was written by the Founders to apply to the federal government, the Court in 1896 launched a decades-long process of “incorporating” those rights – one by one — into the Fourteenth Amendment (the post-Civil War amendment designed to restrict the powers of state and local governments). The theory was that the guarantee of “liberty” in the Fourteenth Amendment was such a sweeping concept that it must embrace most if not all of the fundamental rights guaranteed to Americans.
The Religion Clauses work both sides of the church-and-state relationship – they guarantee that people may freely exercise their religion as they see fit without government interference, and they guarantee that the government will remain neutral toward religious beliefs or practices, neither promoting them nor denigrating or suppressing them.
In the 1947 decision in Cantwell v. Connecticut, the leading ruling extending the Religion Clauses to states, counties and cities, Justice Owen Roberts wrote for a unanimous Court: “The fundamental concept of liberty embodied in [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment.”
While the First Amendment explicitly restrains Congress from passing laws that violate the Religion Clauses (“Congress shall make no law…”), that opinion declared, the Fourteenth Amendment “has rendered the state legislatures as incompetent as Congress to enact such laws.” (And, of course, since local governing bodies – including school boards — are mere creatures of the states, they, too, are bound by those Clauses.)
But over the seven-plus decades that the Court has been applying those basic church-state principles to differing laws and factual scenarios, a good deal of tension has developed between the two parts of those Clauses. How far may government go to accommodate free exercise of religion before it actually does – or appears to – endorse religious doctrine or ritual? More specifically, when does a prayer in the public school setting count as the school’s message?
That’s the tension the Court will again confront tomorrow when it hears the latest case about prayer in public school buildings or on school property. Of all the variations that the church-state controversy can take, with America still deeply divided over how much religion to allow in the public space, none is as controversial as school prayer.
In June of this year, about the time that this case will probably be decided, the Court’s first school prayer decision will be having its 60th anniversary. In the 1962 decision in Engel v. Vitale, the Court by a 7-to-1 decision struck down this prayer that students were required to recite each day in the New Hyde Park, N.Y., public schools: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”
Declaring that the First Amendment forbids that mandatory recital, the Court said: “In this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government.” (In 1985, in the case of Wallace v. Jaffree, the Court extended that principle to “silent meditation,” if that was adopted by public schools to encourage students to pray silently.)
The new case does not involve an officially-prescribed prayer, and it does not involve silent prayer. It involves a high school assistant football coach who, after each game, went to mid-field, kneeled down and prayed aloud, with the players around him.
The coach, Joseph A. Kennedy, has been locked for the past seven years in a highly emotional legal and publicity battle with the officials of the Bremerton (Wash.) School District over his ritualistic praying on the field. Enlisting Facebook and local and national media to his cause as a devout Christian, Kennedy was not rehired after he and school officials could not agree on where he could engage in prayers. He has since moved to Florida, but his lawyers insist that he will return to Bremerton if he gets his job back.
His case is a complex mix of controversy over the First Amendment’s Free Speech Clause and both parts of that Amendment’s Religion Clauses – the guarantee of “free exercise of religion” and the ban on official “establishment of religion.”
Kennedy’s first appeal, raising only his free speech claim, reached the Supreme Court four years ago, and lingered there for more than a year as the Justices pondered what to do. They ultimately returned the case to lower courts to develop more facts on just why Kennedy had lost his job. Four of the Court’s more conservative Justices found the lower court rulings “troubling,” and went on to suggest that the Court might need to rule later on his religious rights.
The lower courts again ruled for the school district, concluding that the district risked creating the impression that it was endorsing religion if it allowed on-field prayers, and thus might be sued for “establishing” religion as school policy, and that Kennedy could not claim that he was only engaging in private, personal speech because of his efforts to generate wide publicity for his challenge. One judge accused Kennedy of waging an “everybody watch me pray” campaign. Kennedy, continuing his challenge, returned to the Supreme Court, and this time the Justices granted full review.
The questions before the Court: Does a public school employee speak for the government in reciting a prayer at school and thus is not protected by the First Amendment’s Free Speech Clause as a private speaker, and if a school ban on such prayer does violate the employee’s religious rights, does the Amendment’s Establishment Clause still require the ban?
Significance: If the highly charged issue of school prayer were not enough by itself to make this a difficult case for the Court, the recent rise of a new style of activism by parents over what happens at school while their children are there only raises the judicial stakes. In this very case, one of the other coaches decided to resign, fearing that community agitation was so deep that he might be shot dead.
Dealing with either of these difficult aspects of the case will be further complicated by the reality that the Court’s strong new conservative majority has demonstrated very deep sympathies for “free exercise” claims by religious adherents and denominations, and a declining concern about official “establishment” of religion.
When the case was before the Court the first time, four members of that majority questioned whether the Court should consider overruling two of its prior decisions limiting the protection of the Free Exercise Clause and relaxing the legal duty of employers under civil rights law to accommodate the religious rights of their employees. Those Justices were Samuel A. Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.
Those four have sometimes picked up the support in religion cases of Chief Justice John G. Roberts and, a few times, the newest Justice, Amy Coney Barrett.
A study last year by two highly regarded universities (University of Chicago and Washington University-St. Louis) found that advocates of religious rights had won 81 percent of the cases decided by the Court since Roberts became Chief Justice almost 17 years ago.
Now that the Kennedy case is under review, conservative leaders – including six former U.S. attorneys general – have asked the Court explicitly to overrule the 1971 decision (in the case of Lemon v. Kurtzman) that laid down the constitutional formula for judging Establishment Clause claims. Another conservative advocacy group, the American Center for Law and Justice, urged overruling not only the Lemon precedent but also a 2000 ruling (Santa Fe School District v. Doe) barring student-led prayer at the beginning of high school football games.
Whether the Court has to overrule any prior decision in order to rule in this case is highly uncertain. It will depend on how energetically the conservative Justices are prepared to use their majority.
It seems predictable that former coach Kennedy will somehow win the case, unless the Justices are persuaded by the school district’s argument that, having moved away to Florida, Kennedy has made his legal case “moot” (legally dead) and thus beyond the Court’s power to decide.
A discussion of Monday’s second hearing, in a death penalty case, will appear here tomorrow.