The Freedom From Religion Foundation is excoriating a religion-pandering opinion with far-reaching consequences that the U.S. Supreme Court handed down this morning in a case involving an ostentatiously praying public school coach.
Last week, the high court repealed Roe v. Wade, the 1973 decision legalizing abortion. In today’s decision, the extremist supermajority is overturning another decision from the 1970s, Lemon v. Kurtzman (1971), that codified years of Supreme Court precedent declaring unconstitutional government actions with a religious purpose or effect, and is replacing it with a troubling new “history and tradition” test. These decisions come on the heels of the court striking down a ban on state funding to religious schools last week in the case, Carson v. Makin.
In today’s 6-3 decision written by Justice Neil Gorsuch, the majority held that the Free Exercise and Free Speech clauses of the First Amendment protect an individual engaging in a “personal religious observance” from so-called government reprisal.
Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagin, wrote a 35-page dissent that is even longer than the majority opinion, charging that the majority “misconstrues the facts” and once again pays “almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.”
Writes Sotomayor: “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.”
A majority of justices on the court unfortunately have bought the deceitful narrative spun by former Coach Joe Kennedy, who falsely claimed that his prayers on the 50-yard line after high school football games were “personal” and “private,” despite his clear intent to include students and other game attendees in the prayers. Kennedy, with the help of First Liberty Institute, a Religious Right legal outfit, brought the lawsuit after the district placed him on paid administrative leave for continuing to host group prayers on the 50-yard line at the games’ conclusion. Tellingly, Kennedy has claimed that God has called him to become a coach and that he promised God to “give you the glory after every game, win or lose.” The school district tried repeatedly to accommodate Kennedy but the coach, after initially complying, changed tack.
The dissent notes that the majority ignores the history of the violation, in which Kennedy consistently invited others to join his prayers “and for years led student athletes in prayer at the same time and location.” Sotomayor also wrote that the court “ignores the severe disruption to school events caused by Kennedy’s conduct.”
Gorsuch argues that the school district violated the Free Exercise Clause because the district sought “to restrict Mr. Kennedy’s actions at least in part because of their religious character.” Gorsuch likewise found that the school district violated the Free Speech Clause because his prayers were “private speech” and other coaches at that time “were free to attend briefly to personal matters—everything from checking sports scores on their phones to greeting friends and family in the stands.”
Gorsuch casually kills off the Lemon Test, which ultra-conservatives on the high court had long complained about but which had never been officially overturned, by simply saying that “this court long ago abandoned Lemon and its endorsement offshoot.”
The Lemon Test asked whether a government action has a secular purpose, a primary effect that neither advances nor inhibits religion or fosters excessive government entanglement of religion. Sotomayor charges that the court’s new “history and tradition test offers essentially no guidance for school administrators. . . . How will school administrators exercise their responsibilities to manage school curriculum and events when the court appears to elevate individuals’ rights to religious exercise above all else?”
The dissent highlights the problematic nature of religion in our public schools: “Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment,” writes Sotomayor.
The dissent concludes with a warning: “[T]he Court 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. I respectfully dissent.”
Despite the fact-sensitive nature of the decision, FFRF anticipates that other school employees will now attempt to push religion on students at their schools.
FFRF Senior Counsel Patrick Elliott emphasizes, however, that the Supreme Court’s prior precedents protecting public school students from prayers imposed by school officials remain good law. “Any coaches or teachers that think this decision gives them free rein to abuse their position and impose prayers on a captive audience of students would be sorely mistaken,” he adds.
“Today’s decision will hurt vulnerable public school children who deserve protection from religious intrusion,” says Rebecca S. Markert, FFRF legal director. “FFRF will continue to fight for the rights of students to be free from proselytizing public school personnel.”
FFRF filed a compelling amicus brief before the Supreme Court that argued in part that the case was moot. After losing in the district court, Kennedy sold his home in Washington and moved approximately 2,800 miles to Pensacola, Fla. FFRF’s brief cites ample case law establishing that when a plaintiff leaves the state under circumstances such as Kennedy’s, the case cannot continue.
The brief also documented how students who are nonreligious or are religious minorities are harmed when school coaches instigate prayer or other religious practices.
The 9th U.S. Circuit Court of Appeals had last year ruled in favor of Washington’s Bremerton School District. Kennedy has been singled out for praise by Donald Trump, including in a speech from the Oval Office on Religious Freedom Day, and has been a darling of Christian nationalist organizations, Fox News and extremist members of Congress.
“Today’s ruling strikes yet another blow against the rights of conscience of students by an ultraconservative Supreme Court hell-bent on privileging religion,” remarks Annie Laurie Gaylor, FFRF co-president. “The extremist majority is signaling its hostility to more than 75 years of Supreme Court precedent ensuring that a captive audience of public school students are free from religious indoctrination, ritual and coercion.”
The Supreme Court ruling will embolden this crowd no end, to the detriment of our secular republic.
The Freedom From Religion Foundation is a national nonprofit organization with 36,000 members and several chapters across the country, including more than 1,600 members in Washington and two state chapters. Its purposes are to protect the constitutional separation between state and church, and to educate the public on matters relating to nontheism.