July 1, 2022
Perhaps overshadowed by the abortion decision from a few days before, the U.S. Supreme Court issued an important religious freedom decision on Monday.
The case involved a high school football coach, Joseph Kennedy, who had participated in a personal prayer on the football field after games. In the past, some students would voluntarily join him, but he stopped including students at the school’s request. When his personal prayers were brought to the school’s attention by an employee of another school who was impressed by the coach’s actions, the school asked him to stop that practice as well. The coach and school district corresponded about the situation; Kennedy asked for and was denied an accommodation of his personal religious practice.
The district’s concern was that accommodating the coach’s practice would “lead it to violate the Establishment Clause” by endorsing religious practice. As the court summarized:
the District explained that a “reasonable observer” could think government endorsement of religion had occurred when a “District employee, on the field only by virtue of his employment with the District, still on duty” engaged in “overtly religious conduct. The District thus made clear that the only option it would offer Mr. Kennedy was to allow him to pray after a game in a “private location” behind closed doors and “not observable to students or the public.”
When Kennedy persisted in his private prayers, the district determined he should not be rehired the next year. This lawsuit then followed.
The significance of this case lay in the framing by the school district and the lower courts. They believed the rights of free exercise and establishment of religion were at odds and that the establishment concern could override the first.
From the outset, Justice Neil Gorsuch’s opinion for the majority rejected that framing. In fact, the opinion also addressed free speech concerns. The opinion noted “the First Amendment doubly protects religious speech” because “of the framers’ distrust of government attempts to regulate religion and suppress dissent.”
Gorsuch found the district had not acted neutrally towards religious practice: “By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character.” Specifically, the court noted that other staff members were allowed “to forgo supervising students briefly after the game to do things like visit with friends or take personal phone calls.”
The opinion repeatedly rejected the idea that the coach’s prayers imposed religious beliefs or practices on students. The majority noted the coach’s religious “exercise before us does not involve leading prayers with the team or before any other captive audience.” As evidence, the opinion notes that the coach “offered his prayers when students were engaged in other activities like singing the school fight song,” suggesting “those prayers were not delivered as an address to the team, but instead in his capacity as a private citizen.”
If this type of private religious practice were not allowed, in an attempt to avoid endorsing religion, “a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”
In a critical passage, the court explained that the different portions of the First Amendment were not competitive but complementary:
It is true that this Court and others often refer to the “Establishment Clause,” the “Free Exercise Clause,” and the “Free Speech Clause” as separate units. But the three Clauses appear in the same sentence of the same Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” A natural reading of that sentence would seem to suggest the Clauses have “complementary” purposes, not warring ones where one Clause is always sure to prevail over the others.
Thus, an “Establishment Clause violation does not automatically follow whenever a public school or other government entity ‘fail[s] to censor’ private religious speech.” Here the coach’s actions “did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.”
In truth, there is no conflict between the constitutional commands before us. There is only the “mere shadow” of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.
The court concluded:
Respect for religious expressions 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. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.
Justice Sonia Sotomayor dissented, joined by Justices Stephen Breyer and Elena Kagan. The dissent was dominated by a counter-narrative of the facts of the case, suggesting that the involvement of students in past prayers by Kennedy made the current practice of private prayers more suspect.
The dissent’s legal reasoning was that the different clauses of the First Amendment could indeed be in conflict and that the school district was right to prohibit the prayers under the Establishment Clause. To the dissent, the majority opinion “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, eroding the protections for religious liberty for all.”
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