Pushing religion further into the midst of American public life, the Supreme Court’s conservative majority ruled on Monday that a teacher or coach has a constitutional right to pray during a public school event.
The 6-to-3 majority continued its energetic campaign to revise the modern Constitution by overruling liberal precedents, as it had done just last week in erasing the constitutional right to abortion under the 1873 decision in Roe v. Wade and in widening the right of parochial schools to government benefits.
Although the majority said it was only recognizing a right to say a personal prayer, the three dissenting Justices noted that the facts in this particular case were actually that a football coach had frequently led his players in prayer on the field and in the locker room, violating school policy, and had made a publicity campaign out of his right to pray at midfield at the end of the football games at the Bremerton, Wash., public high school.
What was more significant than the facts of the case is that the majority did strike down a test that for the past 51 years has been used regularly to bar religious activity at public schools. That was the so-called “Lemon test,” which gets its name from the 1971 decision in Lemon v. Kurtzman, prohibiting religious expression in the school setting if its purpose or effect was to promote religion and if it drew government into an “entanglement” with faith practices or organizations.
Actually, the test has even deeper historic results: it was based, in part, upon the reasoning the Court used in its first ruling requiring state and local governments to obey the religion clauses in the First Amendment — in the 1947 case Everson v. Board of Education. The Everson precedent was followed by a string of decisions against prayer at public schools – a subject of still-continuing controversy across America.
One clause in the First Amendment assures that all people will have a right to the “free exercise” of their faith beliefs (or a right to have none), while the other clause forbids the government from “establishing” – fostering – religion. Together, the two have been understood as requiring strict neutrality of government toward religion – a “wall of separation” between the two, in Thomas Jefferson’s phrase.
The Court’s newly enlarged conservative majority, existing only in its past two terms, has regularly given more emphasis to the “free exercise” guarantee, and has repeatedly narrowed the limits on government fostering of faith practices or institutions.
In ruling Monday that the Bremerton school officials had unconstitutionally fired assistant football coach Joseph Kennedy for his prayer practices, the majority – in an opinion written by Justice Neil M. Gorsuch – declared that the school district had only a “phantom” justification and acted on a “mistaken belief” when it contended that it had to act in order to avoid violating the Establishment Clause of the First Amendment.
“Respect for religious expressions,” the majority said, “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.”
While the main opinion said that Coach Kennedy had engaged only “in a brief, quiet, personal religious observance,” the dissenters protested that the coach had actually engaged in a series of defiant religious acts, and had even refused to work with school officials who were willing to “accommodate” his faith by working out times and situations where he could pray – on his own, without students and the community observing.
The dissenters also disputed Justice Gorsuch’s argument that the “Lemon test” of constitutionality of prayers in public school settings had already been repudiated in a string of the Court’s precedents. The dissenting opinion asserted that Gorsuch was relying only on separate dissents or concurring opinions by individual Justices over the years; the dissenting opinion said the full Court had never abandoned that test until today’s ruling.
The Gorsuch opinion acted as if the “Lemon test” already had been overruled, and wrote that it should be replaced by a new test that relies on the nation’s history and tradition. The dissenters said the majority did not spell out how school officials and others could know how to follow that test.
Besides ruling that Coach Kennedy’s First Amendment right to the “free exercise” of his faith had been violated by his firing as a coach, the majority also ruled – in a part of the opinion speaking only for five Justices – the school district had violated his First Amendment right to free speech by firing him based on his expressions on the field.
The Gorsuch opinion was joined by full by Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Amy Coney Barrett and Clarence Thomas. Justice Brett M. Kavanaugh joined all of the ruling except the finding that the coach’s free speech rights were violated. Kavanaugh did not explain his objections to that part. Alito and Thomas wrote separate opinions only for themselves, but did not dispute any of the ruling. Each of them said the majority had left unsettled some aspects of how the First Amendment applies to public employees’ expression.
The Court’s dwindling liberal bloc – Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor – joined in an opinion by Sotomayor. Their opinion said that the majority “sets us further down a perilous path in forcing states to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty.”
The decision, they said, “elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state.”
The Court will issue more final decisions on Wednesday. It has four decisions remaining, including a major case that tests the power of the federal government to control emission of poisonous gases from electricity-generating power plants. It is seeking to finish the current term this week or next.