Thursday, September 28, 2023

In Kennedy v Bremerton, Lemon finally falls


The Supreme Court of the United States on Monday handed down a 6-3 decision that said a public school district in Washington state was wrong to suspend an assistant football coach who led prayers on the football field, often joined by students, after home football games.

Along ideological lines, the high court said Assistant Coach Joseph Kennedy had a constitutional right, protected by the First Amendment’s free exercise clause, to pray on the field, The New York Times reported.

Although the so-called “Lemon test” for balancing the rights of schools to protect students’ rights from an intrusion of religion, established by the Supreme Court in Lemon v Kurtzman in 1971, had been frequently challenged in other decisions, this is the first one that overturned it.

Lemon had held that, before finding a school’s actions unconstitutional, courts must consider:

  • whether the challenged school-based practice has a secular purpose
  • whether its primary effect is to advance or inhibit religion
  • whether it fosters excessive government entanglement with religion

Here, the court balanced Mr Kennedy’s individual right to freely exercise his religion against the rights of students to be free of the government—i.e., a public school or school leader—establishing a state religion. The majority favored Mr Kennedy’s free exercise rights and, in so doing, poked a bigger hole in the wall that separates church and state.

“Respect for religious expressions is indispensable to life in a free and diverse republic — whether those expressions occur in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head,” Justice Neil Gorsuch wrote for the majority.

But three liberal justices dissented and joined in a dissenting opinion penned by Justice Sonia Sotomayor. “The 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,” she wrote.

Although there was some celebration on the part of Mr Kennedy, others see the decision as weakening the separation of church and state.

“Today, the court continued its assault on church-state separation, by falsely describing coercive prayer as ‘personal’ and stopping public schools from protecting their students’ religious freedom,” the Times quoted Rachel Laser, the president of Americans United for Separation of Church and State, as saying in a statement.

Perhaps Ms Laser was being polite, referring to the majority opinion “falsely describing” key facts in the case. Many legal experts, including Laurence Tribe, one of Chief Justice John Roberts’s law professors at Harvard, have said, is that the majority opinion was set, from the beginning, in a sort of alternate reality.

An important point, noted by many commenters and by Justice Sotomayor in her dissent, is that when school leaders, such as football coaches who can provide college recruiting help, teachers who give grades, and other school officials, start praying, students feel obligated to join and know that they may be ostracized if they don’t participate.

“Students look up to their teachers and coaches as role models and seek their approval,” the justice added. “Students also depend on this approval for tangible benefits. Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting.”

And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others. Truly I tell you, they have received their reward in full. But when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you.

—Jesus, quoted in Matthew 5:5–6

The ruling creates tension over laws prohibiting teachers from teaching certain subjects, such as a historical figure’s sexual preference, sex change operations, or perhaps some long-debunked “science” theory. This is a slippery slope because it is not likely to be limited to religious speech.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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