Two decades ago, in 2001, the First Amendment Center published Finding Common Ground: A Guide to Religious Liberty in Public Schools, which clearly defined the importance of honoring what we call the separation of religion and the state in our nation’s public schools: “Nowhere is it more important—or more difficult—to address our growing ideological and religious diversity than in the public schools. Not only are our schools a key battleground in the culture wars, they are the principal institution charged with enabling Americans to live with our deepest differences. If we fail in our schools to teach and model the rights and responsibilities that flow from the First Amendment, then surely we endanger the future of our daring experiment in religious liberty.” (Finding Common Ground, pp. 3-4)
The First Amendment Center convened Catholic, Protestant, Jewish and Islamic leaders along with leaders of organizations representing public school administrators, school boards, teachers unions, and advocates for civil liberties to develop and sign on to a set of principles to guide school administrators, teachers, church pastors, priests, imams, and rabbis. I believe most of us continue to accept the following four principles, which were undermined last week when the U.S. Supreme Court, in Kennedy v. Bremerton School District, ruled for the right of a football coach in Bremerton, Washington to pray at the 50-yard line after high school football games:
- “Religious liberty is an inalienable right of every person.
- “Citizenship in a diverse society means living with our deepest differences and committing ourselves to work for public policies that are in the best interest of all individuals, families, communities and our nation.
- “Public schools must model the democratic process and constitutional principles in the development of policies and curricula.
- “Public schools may not inculcate nor inhibit religion. They must be places where religion and religious conviction are treated with fairness and respect.” (Finding Common Ground, pp. 10-13)
Last week in a 6:3 decision written by Justice Neil Gorsuch, the U.S. Supreme Court decided in favor of a high school football coach’s free speech and against the protection of each student’s right to the student’s own belief and religious practice. The case involved a coach who insisted on praying publicly at the 50-yard line after public school football games at the same time he was still serving on the field as a public school coach.
Writing for SCOTUS Blog, Amy Howe explains the substance of this important First Amendment case, “The court rejected the public school district’s argument that allowing Kennedy’s prayers to continue would have violated the Constitution’s establishment clause, which bars government from both establishing an official religion and preferring one religion over another. And it pushed back against the argument that students might have felt obligated to join Kennedy’s prayers, stressing that ‘learning how to tolerate speech or prayer of all kinds is part of earning how to live in a pluralistic society…'”
VOX‘s Ian Millhiser raises a very serious problem with this decision. There is a primary dispute about the very facts of what happened: “Justice Neil Gorsuch’s opinion for himself and his 5 fellow Republican appointees relies on a bizarre misrepresentation of the case’s facts. He repeatedly claims that Joseph Kennedy, a former public school football coach at Bremerton High School… who ostentatiously prayed at the 50-yard line following football games—often joined by his players, members of the opposing team, and members of the general public—‘offered his prayers quietly while his students were otherwise occupied.’… Eventually, these prayers matured into public, after-game sessions, where both Kennedy’s players and players on the other team would kneel around Kennedy as he held up helmets from both teams and led students in prayer… One parent complained to the school district that his son ‘felt compelled to participate,’ despite being an atheist, because the student feared ‘he wouldn’t get to play as much if he didn’t participate.'”
In an analysis back in February, 2022—before the Court was scheduled to hear oral arguments in April—The National Law Journal‘s Marcia Coyle explained the legal history of this case: “The district court ruled that Kennedy’s speech was not private speech, but unprotected speech of a public employee. It also ruled that his practice of praying at the 50-yard line failed both the endorsement and coercion tests, and violated the establishment clause. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit also ruled for the school district.” Coyle traces the history of Coach Kennedy’s on-and-off-again practice of praying on the field while he was working for the school district, including one particular example: “A large crowd rushed the homecoming game field, knocking over band members and cheerleaders. Kennedy prayed at the 50-yard line surrounded by cameras, players, coaches and others. He continued to pray on the field after that game and did not respond to the district’s offers to continue discussing accommodations….”
The Washington Post‘s Aaron Blake explains: “The case was a significant test of how the court balances free speech and religious liberty against the Establishment Clause, with the court increasingly giving more weight to the former.” For half a century, courts have interpreted the First Amendment separation of religion and government according to a precedent known as “the Lemon Test,” based on a 1971 decision in Lemon v. Kurtzman, which defined the meaning of the First Amendment’s Establishment Clause and the separation of religion from government: “To pass this test… the government conduct (1) must have a secular purpose, (2) must have a principal or primary effect that does not advance or inhibit religion, and (3) cannot foster an excessive government entanglement with religion.”
The Baptist Joint Committee for Religious Liberty (BJC) quotes and affirms Justice Sotomayor’s dissent on behalf of herself, Justice Stephen Breyer and Justice Elena Kagan: “While the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state.”
The BJC statement continues: “Justice Sotomayor has this exactly right and highlighted the many facts that the majority ignored or misstated in characterizing Kennedy’s prayers as private and quiet. No student on the field or parent in the stands celebrating the quintessential community ritual of high school football should have to weigh their participation against the isolating and offending threat of turning it into a religious spectacle.”
The director of the American Civil Liberties Union Program on Freedom of Religion and Belief, Daniel Mach commented on last week’s Supreme Court decision in Kennedy v. Bremerton School District “This decision is deeply disappointing and undermines the religious liberty of public school students. As the Supreme Court recognized over 60 years ago, it’s inherently coercive for school officials to pray with students while on duty. Today’s ruling ignores that basic principle and tramples the religious freedom of students who may not share the preferred faith of their coaches and teachers.”