Last week, the conservative justices on the Supreme Court succeeded once again at reading the first clause of the Second Amendment out of the Constitution. That Amendment starts with the line: “A well regulated Militia, being necessary to the security of a free State,” but conservative justices have rendered that phrase meaningless. Now, those same conservatives are coming for the First Amendment. That Amendment starts with: “Congress shall make no law respecting an establishment of religion.” But after the court’s latest opinion, it’s hard to imagine what kind of government display of religion this court would actually strike down. That is, as long as it’s a display of Christian fundamentalist religion.
The case in question is called Kennedy v. Bremerton School District. It’s a relatively high-profile case that involves a high school football coach, Joseph Kennedy, who would pray on the 50-yard line after games. The public school district, Bremerton, asked him to stop several years ago, but he refused. Then he was suspended. Eventually, the district decided not to renew his coaching contract.
By a vote of 6-3 that broke along party lines, the Supreme Court ruled that the Bremerton school district violated Kennedy’s First Amendment rights. Writing for the majority, Justice Neil Gorsuch held that the district unfairly punished Kennedy for engaging in religious activity, thus depriving him of the free exercise of his religion.
The phrase “free exercise” is found in the second clause of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” What conservative justices have done over the years is superpower that second clause to the point where it drowns out the first clause prohibiting the establishment of religion. “Free exercise” has been used by conservatives to justify bigotry against LGBTQ people and deny health care to women. It was used just last week by the Supreme Court to force taxpayer money to go to religious schools in Maine. Christian displays of religiosity are now given preference by this court over secular law.
Gorsuch could have left it at that and allowed this case to be just another expansion of the free exercise clause at the expense of all other concerns. But Gorsuch and the conservative majority decided to go further. They used this case to functionally overrule a long-standing precedent that defined when the government sidles too close to the establishment of religion.
That case was called Lemon v. Kurtzman. Decided in 1971, by an 8-1 margin, Lemon established a three-pronged test (called the “Lemon test”) for identifying religious acts that the government, or its employees, can take while remaining constitutional. To avoid an establishment clause violation, the government or its employee’s conduct “must have a secular purpose, must have a principal or primary effect that does not advance or inhibit religion, and cannot foster an excessive government entanglement with religion.”
The Lemon test was far from perfect, but it provided a guideline, at least, that states and state actors could use to figure out what kinds of conduct is allowable. But in this case, Gorsuch did away with it, saying that the court had “long ago abandoned” the Lemon test.
In its place Gorsuch leaves… nothing. He says he endorses an “offshoot” of the Lemon test to figure out if the government has violated the First Amendment, but he describes that offshoot as being based on interpretations of “historical practices and understandings.” I do not know, and cannot know, what these historical practices are, or which “understandings” the court is likely to find persuasive in the future. But I can bet you all the money in my pocket that this conservative court will find that Christian fundamentalist “historical practices and understandings” do not violate the establishment clause but will hold that religious displays by people from other faiths violate Gorsuch’s white-Christian normative view of history. Relying on these historical practices is how a guy like Gorsuch is going to get around allowing Coach Kennedy to pray at midfield while prohibiting a public school teacher from turning toward Mecca five times a day.
While I find Gorsuch’s view of free exercise to be wrong, and this attack on the establishment clause to be deeply troubling, there is a First Amendment argument that I would find compelling in certain situations. In a one-paragraph concurrence, Justice Samuel Alito argues that Kennedy prayed during a “brief lull” in his official duties, which gave him “a few free moments to engage in private activity.” Gorsuch, in his majority opinion, says that Kennedy prayed during a time when school employees were free to “attend to personal matters,” and says: “He offered his prayers quietly while his students were otherwise occupied.”
If any of that were true, I could understand allowing a football coach a few moments to pray. But Gorsuch and Alito are lying. Kennedy did not pray during a “quiet” moment after his official duties were discharged. His students were not “otherwise occupied.” Gorsuch and Alito are lying about what happened, and they’re lying in such an obvious way that, in dissent, Justice Sotomayor adopted the pictures-or-it-didn’t-happen rule and appended photographic evidence to her dissent to show what Kennedy was really doing and how her conservative colleagues were lying about it.
You see, Kennedy initially started by praying at the 50-yard line after the postgame handshake while players, sometimes from both teams, gathered around him. That practice then evolved into conducting “overtly religious” postgame talks—which Kennedy himself described to his high school football team as “prayers.” The players kneeled around him as he preached.
The district and the superintendent found out and told him to knock it off. Which he did at first. After the game was over and he gave a secular postgame speech, Kennedy would go back to the stadium, alone, and pray.
Nobody had a problem with this, except Kennedy apparently. Eventually, he hired a lawyer and informed the school that he would resume his 50-yard line prayers. Then, before he did so, he went on a media blitz, appearing on a number of shows complaining about how his rights to prayer were being infringed. This, predictably, generated a lot of attention. People who had nothing to do with the school or its football team started attending games, waiting for Kennedy to pray. Some fans rushed the field to join in. Students reported feeling “compelled” to join in with the praying in order to get playing time. The district told Kennedy to stop, and tried to work out a compromise, but wouldn’t mitigate his conduct so as to not cause a scene. Eventually, Kennedy was suspended. The district never “fired” him, but it declined to renew his coaching contract when it was up. He, in turn, opted not to reapply.
The problem is not just that Gorsuch ignores these facts; it’s that he makes up an alternate set of facts to justify his ruling. Government employees have been quietly praying to themselves after football games for a long time. There would be no reason for the court to ignore the establishment clause to allow for private, unobtrusive spiritual behavior after sporting events. But it does need to ignore and functionally write the establishment clause out of existence to allow a public school official to lead students in prayer and compel them (however subtly) to participate in prayer.
That’s why Gorsuch lied about the facts. He had to, in order to make his theocratic point.
The only saving grace of this opinion (no pun intended) is that it will be among the easier to overturn. Should any football coach do what Kennedy actually did, it will be easy to distinguish that case from the fantasy set of facts Gorsuch endorsed.
Of course, overturning this case will require Democrats to expand the court and appoint enough liberal justices to restore the separation between church and state. That is something Democrats are going to have to do, unless they want to see the First Amendment become as weaponized as the Second Amendment.