Coach’s case at Supreme Court may clarify scope of 2 religion clauses

Written by William C. Duncan

January 21, 2022

Photo: First Liberty Institute

The First Amendment to the U.S. Constitution begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Although both address religion, and are phrased as limitations on government power, they typically address different concerns.

This week, the U.S. Supreme Court has announced it will decide an appeal in a religious freedom case later this year that raises the possibility of tension between the two religion clauses.

As a historical matter, the First Amendment initially applied only to the federal government (hence the reference to Congress). So, Congress could not enact a law that limited the ability of churches, religious groups, or people of faith to act on their beliefs (free exercise of religion).

The provision on establishment of religion addressed a very specific scenario. Some states had established religions, i.e., officially state-supported churches including features such as public financing of clergy. The First Amendment foreclosed the federal government from doing the same thing – creating a Church of America like the Church of England.

All the states had abandoned established churches within the first decades of the Constitution, but some states were actively involved in imposing, or winking at, serious threats to religious practice. The ratification of the 14th Amendment in 1868 created a constitutional mechanism to address this problem by limiting the states’ ability to infringe citizens’ rights, as the original Bill of Rights had limited the federal government’s ability to do so.

The scope of that limitation as it relates to state interference with religious freedom is a perennial issue.

Controversies over the establishment clause are not as common but do arise from time to time. These conflicts do not involve express attempts to create a state-sponsored church. Rather, they typically concern actions that could be understood to represent government endorsement of particular religious beliefs or practices, and official state and local actions that might coerce unwilling citizens to affirm religious beliefs or participate in religious observances. Specifically, these controversies have swirled around religious displays on public property or prayers at government meetings.

The case that the Supreme Court agreed to hear this week involves a football coach at a public high school who alleges he lost his job because he was exercising his free exercise right to offer a personal prayer on the football field after a game. The school responds that it could not allow the coach to pray on the field because doing so would violate the establishment clause, since students could feel coercion to join with the coach in praying.

A unique feature of this appeal is that several Supreme Court justices have already weighed in on the facts.

After losing at the trial and appeals courts, the coach appealed to the Supreme Court, which declined to hear the case, in 2018. After two more losses, the coach brought the current appeal, which the court will address.

In 2018, four justices expressed concern about the lower court decisions. Justice Samuel Alito suggested the court of appeals had mistakenly treated “teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students.” This could mean that even “if teachers are visible to a student while eating lunch, they can be ordered not to engage in any ‘demonstrative’ conduct of a religious nature, such as folding their hands or bowing their heads in prayer” or that “a school could also regulate what teachers do during a period when they are not teaching by preventing them from reading things that might be spotted by students or saying things that might be overheard.”

Simply, these justices were worried that the appeals court was endorsing the novel position “that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty.”

Other justices may similarly be troubled by this reading of the establishment clause, which – if Alito is correct – would overwhelm the coach’s free exercise rights.

The court is expected to schedule an oral argument and decide the case by summer. It will provide an important opportunity to clarify the scope of free exercise rights, establishment clause limitations, and the interaction between the two.

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