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.

The Next Potential SCOTUS “Adoption” of Religious Freedom

Disputes over religious freedom have intensified in recent years following the U.S. Supreme Court’s decision in Obergefell v. Hodges that recognized a Constitutional right to same-sex marriage. Most of the nation is aware of the ensuing Masterpiece Cakeshop litigation regarding the dispute between a Christian baker and a same-sex couple over the refusal to bake a same-sex marriage wedding cake. While ruling for the baker there, the Supreme Court unexpectedly sidestepped core First Amendment issues such as free speech and free exercise. It largely ruled on a procedural technicality focusing on unfair bias on the part of the state commission that had brought action against the bakery. In the new disputes revolving around religious freedom, the Supreme Court may take a different approach. In this piece, we will focus on Fulton v. City of Philadelphia, which concerns a Catholic adoption agency in Philadelphia.


In Fulton, the U.S. Supreme Court may address more centralized and substantive Constitutional issues. Here, it will assess a dispute between Catholic Social Services (CSS) and the city of Philadelphia regarding the shut-down of a religious based foster care agency over closely held religious beliefs. This case will also be an early indicator of the impact of the newest Supreme Court Justice Amy Coney Barrett on the Supreme Court’s direction. Early indications are based on oral arguments and the present jurisprudence of the Supreme Court, that this decision will come out to 6-3 in favor of CSS.

There is a question, however, as to how narrow or broad this decision will be and whether it will overturn the controversial Employment Division v. Smith matter from several years prior, most notably authored by Justice Scalia that held neutral laws of general applicability do not violate the Free Exercise Clause.  That case dealt with a substance called “peyote’ that was ingested in a Native American ritual, but also prohibited by state law. This case has aroused much debate and we will discuss a projected impact it will have on this matter. Perception of this case will ultimately be shaped on how the concept of “neutral” is defined.

CSS is a foster care agency affiliated with the Catholic Church and has been a staple of Philadelphia since 1917.  Its foster care services are connected with Catholic doctrine and teachings, thus, the position of the foster care agency is to not provide an endorsement certification for same-sex couples for the foster child placement process. The Philadelphia local government and government agencies have pressured CSS to alter its position and provide the endorsements.  The city government has gone so far as to stop allowing foster children to be placed with families endorsed by CSS. The city cites to its Fair Practices Ordinance that prohibits discrimination on the basis of sexual orientation for support for its position. It should be noted, however, that this has never been applied to adoption agencies. Furthermore, per the facts presented it has been understood that throughout the course of its presence in the Philadelphia community, CSS has never been approached or challenged by a same-sex couple with regards to its policy. During recent oral argument some justices queried whether the city of Philadelphia acted overbroadly and even seemed to be “picking a fight” by the position it has taken against CSS.


The nuanced issues the Supreme Court will be tackling in this matter are presented as follows:

The Supreme Court will consider whether the plaintiff’s right to free exercise was violated in a discriminatory matter by the city of Philadelphia.

First, there is a question as to if the government would undertake the same conduct versus an entity of another religious persuasion or whether the alleged anti-discrimination law itself is not neutral and generally applicable thus it should be invalidated in its entirety. The latter would assess if this law is in accordance with Employment Division v. Smith and would not necessarily result in that matter being overturned.

Second, there is an issue as to whether Employment Division v. Smith should be revisited and this path would assume that applying the standard and that line of reasoning would be detrimental to plaintiff and violate its enumerated right to free exercise. The Court would then have to revisit the standard and weigh if it remains compatible with the right to free exercise.

Finally, an issue presented is whether the government violated the First Amendment by conditioning the plaintiff’s right to participate in the foster care service by violating their religious beliefs by statements and actions.

Paths of Analysis

Many in the scholarly community have called for the overturning of Employment Division v. Smith because they find it infringes on the right to free exercise. As hostile religious sentiment towards organized religion has developed in society since that decision their argument becomes plausible. The view of religious liberty disputes have evolved. No longer are headlined religious disputes commonly brought on substance abuse comingled with religious beliefs, rather in recent years the focus has been on the fallout of the same-sex marriage decision in Obergefell. Discrimination claims are now being brought against religious small businesses and religious inclined business owners regarding the services they choose to provide. The stakes have been raised in these increasingly divisive litigations. The vague language of Smith regarding a law’s neutrality and general applicability could conceivably be utilized by a more activist judge to umbrella what is at issue in Fulton. The unpredictability and questionable application of this standard forms a basis to their criticism. It can be argued, however, that Justice Scalia may not have had the foresight when Smith was decided that such a ruling would have formed a basis for the potential of a broader based litigious assault on religious freedom interests.

There are other issues that should be considered, however, that could lead to productive debate on the matter. First, whether the city law in of itself has been weaponized and applied to attack the core of a faith belief. It would then not be classified as neutral and generally applicable. Under the facts of this matter, the Philadelphia law at issue has never been applied to adoption agencies. A plausible remedy could therefore find the city of Philadelphia in violation based on its application of the ordinance without disturbing Smith.

 Second, the concept of marriage between a man and a woman is fundamental to Christian, specifically Catholic teaching.  Applying the broad, largely undefined sexual orientation class in the law against a faith entity invites conflict especially if there is no carve out for a religious exemption under the law. This is not representative of neutrality and general applicability. While Catholic Church teaching specifically does not accept sexual orientation discrimination, an activist government actor could broadly expand an understanding of this class to cover the construct of same-sex families. This would then prove problematic for religious entities and compromise their mission for helping children in adoption and foster care agencies.

The faith-based foster agency was not basing its endorsement decision on the basis of sexual orientation as an individual discriminatory matter, it was basing its decision on its theological understanding of family life. A same-sex inclination of an individual is distinct from manifestation of orientation that encompasses a form of family life that the Catholic Church does not recognize. Manifestation itself is not the same as orientation.  This is the position of the Catholic Church, thus in principle an allegation of sexual orientation discrimination against the Catholic Church should be dismissed.

The Catholic Church does not want to be a willing facilitator[1] and endorser of an interpretation of family life not in accordance with its teaching. This path would lead to the conclusion that the law as its written is not in compliance with Smith due to its obvious confrontation with religious interests and cannot possibly be applied in a neutral and general applicable matter unless undergoing serious revision.


Overall, there are various interests at work here that will ultimately go into the Supreme Court’s final decision. It is highly likely that Chief Justice John Roberts will be in the majority of this opinion and vote in favor of the Catholic adoption agency. He has demonstrated a strong jurisprudential inclination in favor of religious freedom interests with the exception of the recent Covid regulation disputes. As Chief Justice and being in the majority, he would then have the option of assigning himself the majority opinion which would then in fact control how broad the ruling will be in favor of the Catholic adoption agency. He has presented himself to be more of an incrementalistic jurist during his tenure on the Supreme Court, less inclined to overturn long-standing precedent. Look for him to maintain the Smith precedent and rely on arguments focusing on how the Philadelphia law was not neutral and generally applicable. The law’s very nature without a religious exemption has created confrontations with religious interests. In addition, there is no demonstrated history of this law being applied towards adoption agencies, specifically religious based ones. He will likely find a path to highlight this issue and stop short of overturning Smith.

If, however, the Chief does not find himself in the majority or assigns the opinion to Justice Samuel Alito, who has penned several law and religion opinions, look for a more aggressive approach towards Smith. Justice Alito is known to be a stead-fast proponent of interpreting the Constitution to consider its enumerated Constitutional religious freedoms supported by the traditional understanding of the role of faith in our nation’s history. We will continue to follow this case and update you on its developments.

[1] As an aside, the facilitation argument has been considered in the Little Sisters of the Poor litigation that concerned providing contraceptive and abortifacient coverage against the Church’s beliefs. Not the same facts, but facilitation here is an interesting point connecting to faith interests.