A “Touchdown” for the Constitution

The Supreme Court concluded its last term with several blockbuster decisions. A case we will bring to focus here, Kennedy v. Bremerton School District, has been a subject of major commentary in recent years as it has worked its way up to the Supreme Court. It has continued the theme of law and religion decisions in recent years that appear to be directing Establishment Clause jurisprudence towards its original Constitutional position held before the misdirection of the mid-twentieth century.

By means of a brief recap, in Kennedy the court considered facts concerning a school district’s discharge of a high school football coach after he maintained his practice of saying a prayer in the middle of the football field following football games. His team would gather around him and sometimes would be joined by the opposing team as he led a brief and private non-denominational prayer. The players would not be required to join and there was no “quid pro quo” of being required to pray in order to be able to start. Similarly, there was no adverse actions taken towards players if they chose not to participate. It was a free-will decision to join the coach’s personal prayer. After a period of time and being unable to reach a resolution with the coach with his refusal to end the prayer practice, the school district discharged him from his position.

Arguments that arose in the mid-twentieth century in school prayer cases heavily considered the concept of “compulsion” and the detrimental impact to those who choose not to participate in prayers. These cases began to forbid non-denominational prayer in the classroom and were often premised on atheist or non-Christian students or parents that sought to push prayer in general out of the public-school classroom. These decisions had reversed a century plus of practice where non-denominational and voluntary participation of prayers were common in public schools. Later in the twentieth century, the focus than turned to forbidding prayers and benedictions at public school graduation ceremonies. None of these avenues was a coherent interpretation of the intent of the Establishment Clause.

The Establishment Clause was enacted to avoid the problematic issues created in England when the Church of England dominated the government and society by also forcing out and in some instances persecuting members of other faith traditions whether those traditions be other Christian denominations or other religions. The U.S. government was not to venture into the same theocracy territory. In fact, many of the first settlers in the colonies arrived due to religious persecution in England. The U.S. was not going to adopt a model where there is a state-run church with the President as the head.

While the framers did not want to invite theocracy to be the standard of government in the new nation, they also did not want to push religion out of every aspect of the public realm which is what has been attempted in recent decades. The early colonists did in fact permit prayer in school and it has been a practice for faith-based chaplains to open up government meetings throughout the country. The House of Representatives and Senate maintain a chaplain. Religious entities have also been the beneficiary of tax breaks and recently the Supreme Court has ruled that state forms of discrimination against religious schools and families for scholarship grants that come from tax-payer funding are unconstitutional. There are many examples of how religious interests continue to be present in the governmental practice of our nation even though it has not led to any form of theocracy.

The Supreme Court ruled in Kennedy v. Bremerton that the school district was discriminating against Coach Kennedy and violated his Free Speech and Free Exercise rights. In his majority opinion, Justice Gorsuch emphasized that there was no evidence in the factual record to indicate that the players were compelled to participate in this personal prayer after the game. It is unconstitutional to target religious observances in this manner as the school district did in this case. Kennedy was specifically singled out because the character of his expressions was religious in nature.

This case is a stepping-stone in the right direction and brings optimism to the legal initiative to begin correcting the failures of the prior Supreme Court rulings of the twentieth century that severely constrained and challenged religious expression in the public sphere. While those original school prayer cases that were wrongly decided have not yet been overturned, there will be ample opportunity to build off the Kennedy v. Bremerton victory to perhaps now consider cases with religious expression after class in school. For decades, the Establishment Clause has been wrongly used as a decisive broom to sweep away religious interests without any Constitutional basis in text or from the original intent of the First Amendment.

We should be grateful that the Supreme Court is revisiting this issue and considering the original intent of how the framers sought to harmonize religious interests with the Constitution.

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