Historians assessing the U.S. Supreme Court under Chief Justice John Roberts might need to write a whole book on its remarkable string of rulings defending religious liberty in the face of rising secularism. Another one came Monday in a 6-3 case upholding a high school football coach's right to pray privately on the field after games.
The school in Washington state punished coach Joseph Kennedy "for engaging in a brief, quiet, personal religious observance," as Justice Neil Gorsuch writes for the majority in Kennedy v. Bremerton School District. "The Constitution neither mandates nor tolerates that kind of discrimination." Can we get an "amen"?
As Gorsuch tells the facts, Kennedy at first prayed on his own, though eventually players began joining him. "For over seven years, no one complained," he writes. Then a well-meaning visitor "commented positively on the school's practices to Bremerton's principal." The battle began. When the school district asked Kennedy to quit involving students in prayers, he complied.
But the school also asked him to desist from "overt" religious activity while on duty. Following three games, he prayed at midfield anyway, as his team did other activities, such as singing the fight song. The court record calls his prayers on those days "fleeting," "brief," and "quiet." The result was that he lost his job.
The school argued Kennedy was on duty, so the prayers were state speech and breached the Constitution's pledge of no government "establishment of religion." One legal test, rooted in Lemon v. Kurtzman (1971), is whether a "reasonable observer" might see some religious conduct and think (however erroneously) that it had a government endorsement.
The court has eroded the so-called Lemon test over the years, and with this decision Gorsuch now pulps it as "abstract" and "ahistorical," while chiding lower judges for citing it. Kennedy's prayer was private conduct. It took place after the game, when staff were free to check their phones or chat up spectators.
If Kennedy's action is considered government speech, Gorsuch writes, then "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."
Dissenting for the liberals is the high court's most dogmatic religious objector, Justice Sonia Sotomayor. On the facts, she paints Kennedy in a less flattering light, saying he refused efforts by the school to find an accommodation. Instead he went to the media, pledging to pray at the 50-yard line, resulting at one game in a public rush to join him. Some parents, Sotomayor adds, said their children participated in earlier prayers "solely to avoid separating themselves from the rest of the team."
Yet Gorsuch's opinion is carefully narrow and excludes coercion. On the law, Sotomayor says the majority fails to respect the tension between the Constitution's ban on religious establishment and its guarantee of religious free exercise. Gorsuch replies that the First Amendment makes both promises in a single sentence.
"A natural reading," he says, "suggest the Clauses have 'complementary' purposes, not warring ones." He says the school punished Kennedy under "a mistaken view that it had a duty to ferret out and suppress religious observances."
The deeper significance of this case and last week's on state aid to private schools (Carson v. Makin) is that the Supreme Court is gradually restoring a proper constitutional understanding of the relationship between religion and the state. The court in the 20th century began to use the Establishment Clause to let government restrict religious behavior and speech that is protected by the Free Exercise Clause.
The Roberts court's religious liberty rulings don't risk any state establishment of religion. But they do let Americans of faith express their views — as the founders intended.